ARGUMENT OF THOMAS EWING, JE., 



J-XJPtlSIDIGTIOlSr 



THE LAW AND THE EVIDENCE IN THE CASE 



DR. SAMUEL A. MUDD, 



TKIED BEFOKE A 



Military Commission, of which Maj. Gen. David Hunter is President, 

ON A CHAKGE OF 

/• 
/ 

COJS'SPIRACY TO ASSASSINATE THE PRESIDENT AND OTHER 
CHIEF OFFICERS OF THE NATION, 



i^r-A.'sr .A-isriD j-tjiste, isss. 



WASHINGTON: 

H. rOLKINHORN & SOX, PKISTEKS. 

1S65. 



CHARGE AND SPECIFICATION 



DAVID E. HEROLD, GEORUE A. ATZERODT, LEWIS PAYNE, MI- 
CHAEL O'LAT'GIILIN, JOHN H. SURRATT, EDWARD SPANULER, 
SAMUEL ARNOLD, MARY E. SURRATT, AND SAMUEL A. MUDD. 



CnAKaE I. For maliciously, unLiwfully, and traitorously, and in aid of 
the existing armed rebellion against the Unitt:d States of America, on or 
before the (Jtli day of March, A. D. 1865, and on div<^rs itlier days between 
that day and the lifteenth day of April, A. D. 1865, combining, confede- 
rating, and conspiring together with one John H. Surratt, John Wilkes 
Bootli, Jt'lTerson Davis, George N. Sanders, Beverly Tucker, Jacob Thomp- 
son, William C. Cleary, Clement C. Clay, George Harper, George Young, 
and others unknown, to kill and murder, wilhin the Military Department 
of Washington, and within the fortified and intrenched lines thereof, 
Abraham Lincoln, late, and at the time of said combining, confederating, 
and conspiring. President of the United States of America, and Commander- 
in-chief of the army and navy thereof; Andrew Johnson, now Vice Presi- 
dent of the United States aforesaid ; William H. Seward, Secretary of State 
of the United States aforesaM ; and Uly.-ses S. Grant, Lieutenant General 
of the army of the United States aforesaid, then in command of the armies 
of the LInited States, under the direction of the said Abraham Lincoln ; 
and in pursuance of and in prosecuting said malicious, unlawful, and 
traitorous conspiracy aforesaid, and in aid of said rebellion, after- 
wards, to wit : on the 14th day of April, A. D. 1865, within the military 
department of Washington aforesaid, and within the fortified and in- 
trenched lines of said military department, together with said John Wilkes 
Booth and John H. Surratt, maliciously, unlawfully, and traitorously 
murdering the said Abraham Lincoln, then Presid ut of the United States 
and Commander-in-chief of the army and navy of the United States, as 
aforesaid, and maliciously, unlawfully, and traitorously assaulting, with 
intent to kill and murder, the said William li. Seward, then Secretary of 
State of the United States as aforesaid, and lying in wait, with intent mali- 
ciously, unlawfully, and traitorously to kill and murder the said Andrew 
Johnsun, then being Vice President of the United States, and the said 
Ulysses S. Grant, then being Lieutenant General, and in command of the 
armies of the United States, as aforesaid. 

S/'cciJication 1. In this : that they, the said David E. Herold, Edward 
Spangler, Lewis Payne, John H. Surratt, Michael O'Laughlin, Samuel 
Arnold, Mary E. Surratt, George A. At/.erodt, and Samuel A. Mudd, incited 
and encouraged thereunto by Jeiferson Davis, George N. Sanders, Beverly 
Tucker, Jacob Thompson, William C. Chary, Clement C. Clay, George 
Harper, George Young, and others unknown, citizens of the United States 
aforesaid, and who were then engaged in ai-med rebellion against the 



United States of America, within the limits thereof, did, in aid of said 
armed rebellion, on or before the 6th day of March, A. D. 1865, and on 
divers other days and times between that day and the IStli day of April, 
A. D. 1S65, combine, confederate, and conspire together at Washington 
rity, within the military department of Washington, and within the in- 
trenched fortifications and military lines of the said United States, there 
bf'ing, unlawfully, malicioi.&ly, and traitorously, to kill and murder Abra- 
ham Lincoln, then President of the United States aforesaid, and Com- 
mander-in-chief of the army and navy thereof, and unlawfully, malici- 
ously, and traitorously to kill and murder Andrew Johnson, now Vice 
President of the said United States, upon whom, on the death of said 
Abraham Liniioln, after the fourth day of March, A. D. 1865, the office of 
President of the United States, and Commander-in-chief of the army and 
navy thereof, would devolve; and to unlawfully, maliciously, and traitor- 
ously kill and murder Ulysses S. Grant, then Lieutenant General, and, under 
the direction of the said Abraharti Lincoln, in command of the armies of 
the United States aforesaid, and unlawfully, maliciously, and traitorously 
to kill and murder Wm. H. Seward, then Secretary of State of the United 
States aforesaid, whose duty it was by law, upon the death of said Presi- 
dent and Vice President of the United States aforesaid, to cause an election 
to be held for electoi'S of President of the United States — the conspirators 
aforesaid designi;)g and intending by the killing and murder of the said 
Abraham Lincoln, Andrew Johnson, Ulysses S. Grant, and William H. 
Seward, as aforesaid, to deprive the army and navy of the said United 
States of a constitutional Commander-in-chief; and to deprive the armies 
of the United States of their lawful commander ; and to prevent a lawful 
election of President and Vice President of the United States aforesaid; 
and by the means aforesaid to aid and comfort the insurgents engaged in 
armeci rebellion against the said United States as aforesaid, and thereby to 
aid in the subversion and overthrow of the Constitution and laws of the 
said United States. 

And being so combined, confederated, and conspiring together in tlie 
prosecution of said unlawful and traitorous conspiracy, on the night of the 
14th day of April, A. D. 1865, at the hour of about ten o'clock and fifteen 
minutes p. m., at Ford's theatre, on Tenth street, in the city of Washing- 
ton, and within the military department and military lines aforesaid, John 
Wilkes Booth, one of the conspirators aforesaid, in pursuance of said un- 
lawl'ul and traitorous conspiracy, did, then and there, unlawfully, malici- 
ously and traitorously, and with intent to kill and murder the said Abra- 
ham Lincoln, discharge a pistol then held in the hands of him, the said 
Booth, the same being then loaded with powder and a leaden ball, against 
and upon the left and posterior side of the head of the said Abraham Lincoln ; 
and did thereby, then and there, inflict upon him, the said Abraham Lin- 
coln, then President of the said United States, and Commander-in chief of 
the army and navy thereof, a mortal wound, whereof, afterwai'ds, to wit : 
on the 15th day of April, A. D. 1865, at Washington city aforesaid, the 
said Abraham Lincoln died ; and thereby, then and there, in pursuance 
of said conspiracy, the said defendants, and the said John Wilkes Booth, 
did, unlawfully, traitorously and maliciously, and with the intent to aid 
the rebellion, as aforesaid, kill and murder the said Abraham Lincoln, 
President of the United States, as aforesaid. 

And in further prosecution of the unlawful and traitorous conspiracy- 
aforesaid, and of th- murderous and traitorous intent of said conspiracy, 
the said Edward Spangler, on said 14th day of April, A. D. 1865, at about 
the nme hour of that day, as aforesaid, within said military department 
and the ujilitaiv lines aforesaid, did aid and assist the said John Wilkes 



Booth to obtain entrance to the box in said theatre, in which said Abra- 
ham Lincoln was sitting at the time lie was assaulted and shot, as afore- 
•said, by John Wilkes Booth ; and also did then and there aid said Booth 
in barring and obstructing the door of the box of said theatre, so as to 
hinder and prevent any assistance to, or rescue of, the said Abraham Lin- 
coln, against the murderous assault of the said Jolm Wilkes Hooth, and 
did aid and abet him in making his escapts after the said Abraham Lincoln 
had been murdered in manner aforesaid. 

And in farther prosecution of said unlawful, murderous and traitorous 
■conspiracy, and in pursuance thereof, and with the intent as aforesaid, the 
said David E. llerold did, on the nigiit of the 14th of April, A. D. 18(j5, 
within the military department and military lines aforesaid, aid, abet and 
assist the said John Wilkes Booth in the killing and murder of the said 
Abraham Lincoln, and did then and there aid, and at>et. and assist him, the 
said Jolm Wilkes Booth, in attempting to escape through tlie military lines 
aforesaid, and did accompany and assist the said John Wilkes Booth in 
attempting to conceal himself and escape from justice, after killing and 
murdering said Abraham Lincoln, as aforesaid. 

And in further prosecution of said unlawful and traitorous conspiracy, 
and of the intent thereof as aforesaid, the said Lewis Payne did, on the 
same night of the 14th day of April, A. U. lSt)5, about the same hour of 
ten o'clock fifteen minutes, p. m., at the City of Washington, and within 
the military department and the military lines aforesaid, unlawfully and 
maliciously make an assault upon the said William H. Seward, Secretary 
of State as aforesaid, in the dwelling-house and bed-chamber of iiim, the 
said William H. Seward, and the said Payne did then and there, with a 
large knife, lield in his hand, unlawfully, traitorously, and in pursuance 
of said conspiracy, strike, stab, cut, and attempt to kill and murder, the 
said William rl. Seward, and did thereby, then and there, and with the 
intent aforesaid, with said knife, inflict upon the face and throat of the said 
William H. Seward divers grievous wounds. And the said Lewis Payne, 
in further prosecution of said conspiracy, at the same time and place last 
aforesaid, did attempt, with the knife aforesaid, and a pistol held in his 
hand, to kill and murder Frederick W. Seward, Augustus H. Seward, Em- 
rick W. Hansell, and Gt-orge F. Robinson, who were tlien striving to pro- 
tect and rescue tlie said William H. Seward from murder by the said Lewis 
Payne, and did then and there, with said knife and pistol held in his hands, 
intlict upon the head of said Frederick W. Seward, and iii^on tht; persons 
of said Augustus H. Seward, Kmrick W. Hansell, and George F. Robinson, 
divers grievous and dangerous wounds, with intent, then and there, to kill 
and murder the said Frederick W. Seward, Augustus H. Seward, Emrick 
W. Hansell, and George F. Robinson. 

And in furtlier prosecution of said conspiracy and it straitorous and mur- 
derous designs, the saiil George A, Atzerodt did, on the night of the 14th 
of April, A. D. 18U5, and about tlie same hour of the night aforesaid, within 
the military department and the military lines aforesaid, lie in wait for 
Andrew Jolmsoii, then Vice President of the United States aforesaid, w.ta 
the intent unlawfully and maliciously to kill and murder him, the said 
Andrew Johnson. 

And in the further prosecution of the conspiracy aforesaid, and of its mur- 
derous and treasonable puri)oses aforesaid, on the nights of the 13th and 
14lh of April, A. D. 1865, at Washington city, and within the military de- 
partment and military lines aforesaid, the said Michael O" Laughlin did 
then and there lie in wait for Ulysses S. Grant, then Lieutenant General 
and commander of the armies of the United States as afoiesaid, with intent 
then and there to kill and murder the said Ulysses S. Grant. 
2* 



And in further prosecution of said coBspiracy, the said Saniuel Arnold 
did, within the military department and military lines aforesaid, on or 
before the sixth day of March, A. D. 1865, and on divers other days and 
times between that day and the 15th day of April, A. D. 1865, combine, 
conspire with, and aid, counsel, abet, comfort, and support, the said John 
Wilkes Booth, Lewis Payne, George A. Atzerodt, Michael O'Laughlin, and 
their confederates, in said unlawlul, murderous, and traitorous conspiracy, 
and in the execution thereof, as aforesaid. 

And in further prosecution of the said conspiracy, Mary E. Surratt did, 
at WashiHgton city, and within the military department and military lines 
aforesaid, on or before the sixth day of March, A. D. 1865, and on divers 
other days and times between that day and the 2Uth day of April, A. D. 
1865, receive, entertain, harbor, and conceal, aid and assist, the said John 
Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael 
O'Laughlin, (ieorge A. Atzerodt, Samuel Arnold, and their confederates, 
with knowledge of the murderous and traitorous conspiracy aforesaid, and 
with intent to aid, abet, and assist them in the execution thereof, and in 
escaping from justice after the murder of the said Abraham Lincoln, as 
aforesaid . 

And in further prosecution of said conspiracy, the said Samuel A. Mudd 
did, at Washington city, and within the military department and military 
lines aforesaid, on or before the sixth day of March, A. D. 1865, and on 
divers other days and times between that day and the twentieth day of 
April, A. D. 1865, advise, encourage, receive, entertain, harbor, and con- 
ceal, aid and assist, the said John Wilkes Booth, David E. Herold, Lewis 
Payne, John H. Surratt, Michael O'Laughlin, George A. Atzerodt, Mary E. 
Surratt, and Samuel Arnold, and their confederates, with knowledge of the 
murderous and traitorous conspiracy aforesaid, and with intent to aid, abet, 
and assist them in the execution thereof, and in escaping from justice after 
the murder of the said Abraham Lincoln, in pursuance of said conspiracy, 
in manner aforesaid. 

By the Pkesidext of the United States : 

("Signed^ J. HOLT, Judge Advocate General. 



Argument on the Plea to the Jurisdiction. 



Mail it please the Court ; The first great question — a question that meets 
us at the threat old is — Do you, gentlemen, constitute a court, and have 
jou jurisdiction, as a court, of the persons accused, and the crimes with 
which they are charged ? If you have such jurisdiction, it must have been 
conferred by the Constitution, or some law consistent with it, and carrying 
out its provisions. 

1. The 5th article of the Constitution declares : 

"That the judicial power of the United States shall be vested in one 
Supreme Court, and in such V'ferior courts as Congress may from time to 
time ordain and establish;" and that '"the judges of both Supreme and 
inferior courts shall hold their offices during good behavior."' 

Under this provision of the Constitution, none but courts ordained or es- 
tablished by Congress can exercise judicial power, and those courts must 
be composed of ju<iges who hold their offices during good behavior. They 
must be independent judges, free from the influence of Executive power. 
Congress has not "ordained and established" you a court, or authorized 
you to call these parties before you and sit upon their trial, and you are 
not "judges^^ who hold your offices during good behavior. You are, there- 
fore, no court under the Constitution, and have no jurisdiction in these 
cases, unless you obtain it from some other source, which overrules this 
constitutional provision. 

Tbe President cannot confer judicial power upon you, for he has it not. 
The executive, not the judicial, power of the United States is vested in him. 
His mandate, no matter to what man or body of men addressed, to try, and 
if convicted, to sentence to death a citizen, not of the naval or military 
forces of the United States, carries with it no authority which could be 
pleaded in justification of the sentence. It were no better than the simple 
mandate to take A B, C D, E F, and G H, and put them to death. 

2. The President, under the oth amendment to the Constitution, may 
constitute courts pursuant to the Articles of War, but he cannot give them 
jurisdiction over citizens. This article provides that "no person shall be 
held to answer for a capital or otherwise infamous crime, unless on a pre- 



eentmeMt or indictment of a grand jury, except in cases arising in the land 
or naval forces, or in the militia when in actual service in time qfivar or public- 
danger. 

The presentment or indictment of a grand jury is a thing unknown to and 
inconsistent with your commission. You have nothing of the liind. 
Neither you nor tlie law officers who control your proceedings seem to 
have thought of any such thing. These defendants did not and do not 
belong to the '^land or naval forces'^ of the United States — nor were they 
^'■militia, in time of war or public danger, in actual service. ^^ The Constitu- 
tion, therefore, in the article above cited, expressly says : You shall not 
hold them to answer to any of the capital and infamous crimes with which 
they are charged. 

Is not a single, direct, constitutional prohibition, forbidding you to take 
jurisdiction in these cases, sufficient ? If it be not, read the provision of 
the 3d section of the 3d article. It is as follows : 

"The trial of all crimes, except in cases of impeachment, shall be by 
jury. ' ' 

But lest this should not be enough, in tlieir anxious care to provide 
against the abuses from which England had recently escaped and which 
were still fresh in the memories of men — as the Star Chamber, the High 
Commission Courts, and their attendant enormities — the framers of the 
Constitution further provided, in the 6th amendment, that — 

"In all criminal prosecutions the accused shall enjoy the right to a 
speedy and public trial by an impartial jury of the State and district wherein 
the crime shall have been committed." 

Now, whence, and what, is the authority which overrules these distinct 
constitutional prohibitions, and empowers you to hold these citizens to 
answer, despite the mayidates of the Constitution forbidding you ? 

Congress has not attempted to grant you the power ; Congress could not 
grant it. A law to that effect, against the constitutional prohibition, would 
be merely void. Congress has authorized the suspension of the writ of 
habeas corpus, as the Constitution permits, (Art. 1, sec. 9 ;) but the Con- 
stitution does not thereby permit the military to try, nor has Congress 
attempted to deliver over to the military, for trial, judgment, and execution, 
American citizens, not in the land or naval forces, or in the militia in actual 
service, when accused of crime. Congress and the President, the law-making 
power, were incompetent to this, and have not attempted it. Whence, then, 
comes the dispensation with the constitutional prohibition ? Where and 
whence is the affirmative grant of jurisdiction under which you propose to 
try, and, if convicted, pass sentence upon these men, citizens of the United 
States — not soldiers, not militia-men — but citizens, engaged in the ordinary 
avocations of life ? I am not permitted to know. Congress has not in any 
form attempted to violate or impair the Constitution. They have suspend- 



9 

erl the writ of habeas corpus ; this goes to iniprisomueiit — not trial, convic- 
tion, or punishment. This is the extreme limit to which the Law-making 
power is permitted to go, and it is ouly in cases of strong necessity that 
this is permitted. Congress has repealed so much of the 102d section of 
the act of Septemher 24'ih, 1789, as required that in all capital cases twelve 
petit jurors sliould be summoned from the county in which the offence was 
committed, ("par. 221, sec. 102, repealed July 16, 18(32, page 1164, sec. 22,^ 
but has preserved all other legal provisions made in aid of the Constitu- 
tion to protect citizens from the oppression of unregulated and unrestrained 
Executive power. The accused shall be tried upon an indictment or pre- 
sentment of a grand jury. If two or more crimes of a like nature be charged, 
they must be set forth in separate counts. (Act of February 26, 1853, sec. 
117. J You may uot compel an accused to answer to a loose story or accu- 
sation of several crimes in one count. If the crime charged be treason, which 
this paper approaches moie nearly than any thing else, the accused shall 
have a copy of the indictment, and a list of the jury, and of all the wit- 
nesses to be produced on the trial for proving the said indictment, (men- 
tioning the names and places of abode of such witnesses and jurors,} de- 
livered unto him at least three entire days before he shall be tried for the 
same ; and in other capital offences shall have such copy of indictment and 
list of the jury two entire days at least before the trial. ("Act of April 30, 
1790, sec. 24, p. 221. J) 

Against this array of constitutional and legal prohibition and regulation, 
I know of nothing that can be addiiced, except, perhaps, an Executive 
order authorizing, by direct mandate or by implication, the thing to be 
done which the Constitution forbids you to do. If you be proceeding in 
obedience to such Executive mandate, and if that give jurisdiction, still 
you proceed in a form and manner which the Constitution and law expressly 
forbid. If my clients be charged with treason or murder, ("and 1 conjecture 
they are charged w^th murder at least, J they must be proved to have been 
present aidiny in or actually committing the overt act, or the alleged murder. 
For either of these the punishment on conviction is death. The Judge 
Advocate has been unable, in the cases of Arnold and Mudd, to 
present any evidence remotely approaching that prescribed by the Constitu- 
tion and the laws as the condition of conviction ; and yet I am led to infer 
that he will claim a conviction of one or both of them on the proof presented. 
What is the profession, on this and on the other side of the Atlantic, to 
think of such administration of criminal jurisprudence ? — for this, the first 
of our State trials, will be read with avidity everywhere. I ask the offi- 
cers of the Government to think of this carefully ?;wc, lest two or three 
years hence they may not like to hear it named. 

But we may mistake the whole case as it presents itself to the mind of 
the Judge Advocate. We are here as counsel for the accused, but are not 



10 

allowed to know explicitly with what crime, defined bij law, any one of them 
is charged, or what we are here to defend. No crime known to the law is 
legally charged in the paper which is here sixbstituted for an indictment. 
In this paper three distinct crimes are strongly hinted at in a single 
charge, to each of which different rules of law and evidence are applicable 
and different penalties are attached ; and I had wished to know, so that I 
might shape the defence of my clients accordingly, for which alleged or in- 
timated crime any one, or each or all of them, are to be tried. This infor- 
mation has been denied us. The Judge Advocate puts these parties on trial, 
and refuses fin the most courteous termsj to advise their counsel on what 
law or authority he rests his claim to jurisdiction ; of what crime he in- 
tends to convict each or any of the defendants ; in what laws the crimes 
are detined and their punishments prescribed ; or on what proof, out of 
the wild jungle of testimony, he intends to rest his claim to convictions. 

But it has \we.n said, and will perhaps be said again, in support of this 
juris<iiotion, that the necessities of war justify it — and ^'silent leges inter 
uriiia." So said the Roman orator when Rome had become a military des- 
potism, and ceased forever to have liberty, and when she retained law only 
as the gift or by the permission of the ruling despot. " The law is silent 
amid arms.'" Yes, it is so in a conquered country, when the victorious 
general chooses to put the law to silence ; for he is an autocrat, and may, 
if he choose, be a despot. But how extravagant is the pretence that a 
bold, and spirited, and pattiotic people, because they rise in their majes- 
ty and send forth conquering armies to rescue the Republic, thereby for- 
feit all constitutional and legal protection of life, liberty, and property ! 

Cases have often arisen, in which robber bands, whose vocation is 
piracy on the high seas, or promiscuous robbery and murder on land 
— Itosies humani generis — may be lawfully put to the sword without quarter, 
in battle, or huug on the yard-arm, or otherwise put to death, when cap- 
tured, according to the necessities of the case, without trial or other con- 
viction, except the knowledge of the commanding general that they were 
taken flagrante bello, and that they are pirates or land robbers. A military 
court may be called, but it is advisory merely ; the General acts, condemns, 
and executes. But the Constitution of the United States has nothing to do 
with this. It does not protect pirates or marauders, who are enemies of 
the human race ; or spies, or even enemies taken in battle. It protects, 
not belligerent enemies, but only citizens and those persons not citizens 
who in civil life seek and claim its protection, or aliens who are engaged in 
its military or other service. The power of tlie commanding general over 
these classes is restrained only bythe usages of war among civilized nations. 
But these defendants are not charged as spies or pirates, or armed and or- 
organized marauders, or enemies captured in war, or persons in the land 



11 

or naval service of the United States. They belong to none of these 
classes, over whom military discretion or martial law extends, unless they 
extend over and embrace all the people ol the United States. 

But if the jurisdiction in this case exist, whether by law or by the power 
of arms, I regret that a Military Commission should be charged with the 
trial of these causes. The crimes are, as far as hinted at and written about 
in the charge and specifications, all cognizable in our civil courts. Those 
courts are open, unobstructed, without a single impediment to the full and 
perfect administration of justice — ready and prompt, as they always are, to 
perform the high duties wh ch the well-known principles of law under the 
Constitution devolve on them. What good reason can be given in a case 
like this, to a people jealous of their rights, for a resort here and now to 
military trials and military executions ? We are at the udvent of a new, 
and I trust a successful. Administration. A taint such as this — namely, 
the needless violation of the constitutional rights of the citizen — ought not 
to be jiermitted to attach to and infect it. The jurisdiction of this Com- 
mission has to be sought dehors the Constitution, and against its express 
prohibition. It is, therefore, at least of doubtful validity. If that juria- 
distion do not exist ; if the doubt be resolved against it by our judicial 
tribunals when the law shall again speak, the form of trial by this unau- 
thorized Commission cannot be pleaded in justification of the seizure of 
property or the arrest of person, much less the intliction of the death pen- 
alty. In that event, however fully the recor^led evidence may sustain 
your findings, however moderate may seem your sentences, however fa- 
vorable to the accused your rulings on the evidence, your sentence will be 
held in law no better than the rulings of Judge Lynch's courts in the admin- 
istration of lynch law. When the party now in power tails — as m the vicis- 
situdes of things it must one day fall, and all the sooner for a reckless use 
of its present power — so it will be viewed by that party which siicccfds it. 
This is to be expected, and, indeed, hoped ; but if, unfortunately, this 
proceeding be then accepted and recorded as a precedent, we may have 
fastened on us a military despotism. If we concede that the exercise of 
jurisdiction claimed is 7wiv necessary, and for the best possible object, be- 
fore we consent that it stand as a precedent in our jurisprudence, we should 
recall to mind the statesmanlike and almost prophetic remarks of Julius 
Csesar, in the Roman Senate, on the trial of Lentulus and his accomplices 
in Catiline's conspiracy : " Abuses often grow from precedents good in princi- 
ple; but when the power Jails into the hands oj men less enlightened or less hon- 
est, a just and reasonable precedent receives an application contrary to justice 
and reason.^' It is to be remembered that criminal trials involving capital 
punishment were not then within the competency of the Roman Senate ; 



12 

.ind neither the Consul nor the Senate, nor both of them, had the right 
to condemn a Roman citizen without the concurrence of the people.* 

If you believe you possess the power of life and death over the citizens 
of the United States in States where the regular tribunals can be safely ap- 
pealed to, still, for the sake of our common country and its cherished in- 
stitutions, do not press that power too far. Our judicial tribunals, at some 
future day, I have no doubt, will be again in the full exercise of their 
constitutional powers, and may think, as a large proportion of the legal 
profession think now, that your jurisdiction in these cases is an unwar- 
ranted assumption ; and they maj' treat the judgment which you pro- 
nounce and the sentence you cause to be executed as your own unau- 
thorized acts. 

This assumption of jurisdiction, or this use of a legitimate jurisdic- 
tion, not created by law and not known to the law or to legal men, has 
not for its sanction even the plea of necessitij. It may be convenient. 
Conviction may be easier and more certain in this Military Commission 
than in our constitutional court . Inexperienced as most of you are 
in judicial Investigations, you can admit evidence which the courts 
would reject, and reject what they would admit, and you may convict 
and sentence on evidence which those courts would hold to be wholly 
insufficient. Means, too, may be resorted to by detectives, acting un- 
der promise or hope of reward, and operating on the fears or the cu- 
pidity of witnesses, to obtain and introduce evidence, which cannot be 
detected and exposed in this military trial, but could be readily in the free, 
but guarded, course of investigation before our regular judicial tribunals. 
The Judge Advocate, with whom chiefly rests the fate of these citizens, 
is learned in the law, but from his position he cannot be an impartial 
judge, unless he be more than man. He is the prosecutok in the most 
extended sense of the word. As in duty bound, before this Court was 
called, he received the reports of detectives, pre-examined the witnesses, 
prepared and officially signed the charges, and as principal counsel for the 
Governnrent, controlled on the trial the presentation, admission, and re- 
jection of evidence. In our courts of law, a lawyer who has hrard his 
client's story, if transferred from the bar to the bench, may not sit in the 
trial of the cause, lest the ermine be sallied through the partiality of 
counsel. This is no mere theoretical objection — for the union of prose- 
cutor and judge works practical injustice to the accused. The Judge Ad- 
vocate controls the admission and rejection of evidence — knows what 
will aid and what will injure the case of the prosecution, and inclines favor- 
ably to the one and unfavorably to the other. The defence is met with a 
bias of feeling and opinion on the part of the judge who controls the pro- 



*Cicero, who was Consul, Cato, Silanus, and others of their associates in the Senate, wei-e 
afterwards tried for the murder of the conspirators, convicted, and banished. 



13 

•ceedings of the Court, and on wliom, in great measure, the fate of the 
recused depends, which morals and law alike reject. Let it not be sup- 
posed I censure or reflect on any one, for I do not. The wrong suffered 
by the parties accused has its root in the vice of this system of trial, which 
I have endeavored to expose. 

Because our Chief, so venerated and beloved, faud no one venerated and 
loved him more than I, J has fallen by the hand of a ruthless assassin it 
ought not to follow that the Constitution and law should be violated in 
punishing men suspected of having compassed his death, or that men not 
legally found guilty should be sacrificed in vengeance as victims generally 
because of the crime. There may be a lurking feeling among men which 
tends to this harshness of retribution, regardless of the innocence of those 
on whom vengeance may fall. Tending to this feeling, exciting or min- 
istermg to it, was the two days' testimony which, without other appar- 
ent point or purpose, detailed the horrors of the Libby Prison ; and the 
evidence, that, in 1861, one of my clients took part in the rebellion ; 
and the further testimony fwhich we showed was utterly fabulousj 
that another of my clients, in 1863 or 1864, entertained rebel officers and 
soldiers, and corresponded with rebels in Richmond. As if to say • "What 
matters it how we try, or whether we legally try at all, provided we con- 
vict and execute men who have been associated with, or in sympathy 
with, monsters such as those ? Homer makes Achilles immolate, at the 
funeral pyre of Patroclus, twelve Trojan captives, simply because they 
were Trojans, and because Patroclus had failed by a Trojan hand. If 
that principle of judicial action be adopted here, it were surely not 
too much to sacrifice to the manes of one so beloved and honored as our late 
Chief .Magistrate a little lot of rebel sympathizers, because, like the assas- 
sin, some of them, at some time, participated in the rebellion, or gave aid 
and comfort to rebels. If this course of reasoning do not develop the 
object of that strange testimony, I know not how to read it. Indeed a 
position taken by the learned Assistant Judge Advocate, in discussing my 
objection to the part of that evidence which relates to my clieuts, goes to 
this-and even beyond it-namely, that participation in the rebellion was 
participation in the assassination, and that the rebellion itself formed part 
of the conspiracy for which these men are on trial here. 

THOMAS EWING, Jr., 
Of Counsel for Samuel A. Mudd, Samuel Arnold, and Edward Spangler, 



Argument on the Law and the Evidence in the 
Case of Dr. Samuel A. Mudd. 



May it please the Court : If it be determined to take jurisdiction here, 
it then becomes a question vitally important to some of these parties — a 
question of life and death — whether you will punish only offences created 
and declared by law, or whether you will make and declare the past acts 
of the accused to be crimes, which acts the law never heretofore declared 
criminal; attach to them the penalty of death, or such penalty as may seem. 
meet to you ; adapt the evidence to the crime and the crime to the evidence, 
and thus convict and punish This, I greatly fear, may be the purpose, 
especially since the Judge Advocate said, in reply to my inquiries, that he 
would expect to convict ^^ under the common law of ivar.^' This is a term 
unknown to our language — a quidditii — wholly undefined and incapable of 
definition. It is, in short, just what the Judge Advocate chooses to make 
of it. It may create a fictitious crime, and attach to it arbitrary and 
extreme punishment, and who shall gainsay it? The laws of war — 
namely, our Articles of War — and the habitual practice and mode of pro- 
ceeding under them, are familiar to us all ; but I know nothing, and never 
heard or read of a common law of war, as a code or system under which 
military courts or commissions in this country can take and exercise juris- 
diction not given them by express legal enactment on constitutional 
grant. But I still hope the law is to govern, and if it do, I feel that my 
clients are still safe. 

I will now proceed to show you, that on the part of one of my clients — 
Dr. Mudd — no crime known to the law, and for which it is pretended 
to prosecute, can possibly have been committed. Though not distinctly 
informed as to the offence for which the Judge Advocate claims conviction, 
I am safe in saying, that the testimony does not point to treason, and if he 
is being tried for treason, the proceedings for that crime are widely de- 



parted from. The prosecution appears to liave been instituted and con- 
ducted under the prochimation of the Secretary of War, of April 20, 18G5. 
This malces it a crime, punishable with death, to harbor or screen Booth, 
Atzeroilt, or Herolil, or to aid or assist them to escape. It makes it a crime 
to do a particular act, and punishes that crime with death. I suppose we 
must take this proclamation as lato. Perhaps it is part of what the Judge 
Advocate means when he speaks of the "common law of war." If this be 
so, my clients are still safe, if we be allowed to construe it as laws are con- 
strued bij courts of justice. But I will show, first, that Dr. Mudd is not, and 
caiinct possibly be, guilty of any offence known to the law. 

1. Not of treason. The overt act attempted to be alleged is the murder 
of the President. The proof is conclusive, that at the time the tragedy was 
«nacted Dr. Mudd was at his residence in the country, thirty n lies from 
the place of the crime. Tlmse who committed it are shown to have acted 
for themselves, not as the instruments of Dr. Mudd. He, therefore, cannot 
be charged, according to law and upon the evidence, with the commission 
of this overt act. There are not two witnesses to prove that he did com- 
mit it, but abundant evidence to show negatively that he did not. 

Chief Justice Marshall, in delivering an opinion of the Court in Burr's 
case, says : " Those only who perform a part, and who are leagued in the 
conspiracy, are declared to be traitors. To complete the definition both 
circumstances must concur. They must "perform a part^^ which will fur- 
nish the overt act, and they must be leagued with the conspiracy." ("4 Cr., 
4740 

Now, as to Dr. Mudd, there is no particle of evidence tending to show 
that he was ever leagued with traitors in their treason ; that he had ever, 
by himself, or by adhering to, and in connection with, others, levied war 
against the United States. It is contended that he joined in compassing 
the death of the President, ("" the King's death.") Foster, p. 149, speak- 
ing of the treason of compassing the king's death, says : " From what has 
been said it followeth, that in every indictment for this species of treason, 
and indeed for levying war and adhering to the king's enemies, an overt 
act must be alleged and proved." (4 Cr., 490. J 

The only overt act laid in these charges against Mudd is the act of assas- 
sination, at which it is claimed he was constructively present and partici- 
pating. His presence, and participation, or procurement, must be proved 
by two witnesses, if the charge be treason ; and such presence, participation, 
or procurement, be the overt act. 

Chief Justice Marshall, in Burr's case, (Dall., 500, J says: "Collateral 
points, say the books, may be proved according to the course of the com- 
mon law ; but is this a collateral point ? Is the fact, without which the 
accused does not participate in the guilt of the assemblage, if they were 
guilty, for in any way in the guilty act of others,,) a collateral point ? This 



cannot be. The presence of the party, when presence is necessary, being 
part of the overt act, must be positively proved by two witnesses. No pre- 
sumptive evidence, no facts from which presence may be conjectured or 
inferred, will satisfy the Constitution and the law. If procurement take 
the place of presence, and become part of the overt act, then no presump- 
tive evidence, no facts from which the procurement may be conjectured or 
inferred, can satisfy the Constitution and the law. The mind is not to be 
led to the conclusion that the individual was present by a train of conjec- 
tures or inferences, or of reasoning. The fact itself must be proved by iwo 
witnesses, and must have been committed within the district." 

2. Not of murder. For the law is clear, that, in cases of treason, presence 
at the conamissiou of the overt act is governed by the same principle as con- 
structive presence in ordinar if felonies, and has no other latitude, greater or 
less, except that in proof of treason two witnesses are necessary to the 
overt act, and one only in murder and other felonies. "A person is not 
constructively present at an overt act of treason, unless he be aiding and 
abetting at the fact, or ready to do so, if necessary." (4 Cr., 492.^ 
Persons not sufficiently near to give assistance are not principals. And 
although an act be committed in pursuance of a previous concerted plan, 
those who are not present, or so near as to be able to afford aid and assist- 
ance, at the time when the offence is committed, are not principals, but 
accessories before the fact. (Wharton, Am. Crim. Law, 112 to 127. J 

It is, therefore, perfectly clear, upon the law as enacted by the Legisla- 
ture and expounded by jurists, that Dr. Mudd is not guilty of participating 
in the murder of the President ; that he was not actually or constructively 
present when the horrid deed was done, either as a traitor, chargeable 
with it as an overt act, or a conspirator, connected as a principal felon 
therewith. 

3. The only other crimes defined by law for the alleged commission, of 
which the Judge Advocate may, by possibility, claim the conviction of the 
accused, are : — 1st. The crime of treasonable conspiracy, which is defined 
by the law of 21st July, 1861, and made punishable by fine not exceeding 
$6,000, and imprisonment not exceeding six years. 2d. The crime of be- 
ing an accessory before, or after, the fact to the crimes of murder, and of 
assault with intent to kill. That the accused is not guilty of either of these 
crimes, will be clearly shown in the discussion of the evidence which 
follows. 

4. Admitting the Secretary's proclamation to be law, it, of course, either 
supersedes or defines the unknown something or nothing which the Judge 
Advocate calls "the common law of war." If so, it is a definite, exist- 
ing thing, and I can defend my clients against it ; and it is easy to show 
that Dr. Mudd is not guilty of violating that proclamation. He did not, 
after the date of the proclamation, see either of the parties named therein — 



9 

dresa the wound of Booth, or point out the way to Herold — and the pro- 
ciamation relates to future acts, not to past. 

5. But of the common law of war, as distinct from the usages of Military 
Courts, in carrying out and executing the Articles of War, I know nothing, 
and, on examining the books, I find nothing. All that is written down in 
hooks of law or authority I am, or ought to be, prepared to meet ; but it 
were idle and vain to search for and combat a mere phantom of the imagi- 
nation, without form and void. 



I now pass to a consideration of the evidence, which I think will fully 
satisfy the Court that Dr. Mudd is not guilty of treasonable conspiracy, 
or of being an accomplice, before or after the fact in the felonies com- 
mitted. 

The accused has been a practising physician, residing five m'les north of 
Bryantown, in Charles county, Maryland, on a farm of about five hundred 
acres, given to him by his father. His house is between twenty-seven and 
thirty miles from Washington, and four or five miles east of the road from 
Washington to Bryantown. It is shown by Dr. George Mudd, .John L. 
Turner, John Waters, Joseph Waters, Thomas Davis, John McPherson, 
Lewellyn Gardiner, and other gentlemen of unimpeached and unquestion- 
able loyalty, who are in full sympathy with the Government, that he is a 
man of most exemplary character — peaceable, kind, upright, and obedient 
to the laws, iis family being slaveholders, he did not like the anti- 
slavery measures of the Government, but was always respectful and tem- 
perate in discussing them, freely took the oath of allegiance prescribed for 
voters, ("Dr. George Mudd, J supported an Union candidate against Harris, 
the secession candidate, for Congress, ("T. L. Gardiner,^ and for more than 
a year past regarded the rebellion a failure. ("Dr. George Mudd.^ He was 
never known or reported to have done an act or said a word in aid of the 
rebellion, or in countenance or support of the enemies of the Government. 

An eflbrt was made, over all objections and in violation, I respectfully 
submit, of the plainest rules of evidence, to blacken his character as a citi- 
zen, by showing that he was wont, after the war broke out, to threaten his 
slaves to send them to Richmond " to build batteries." But it will be seen 
hereafter, that all that part of the testimony of the same witnesses, which 
related to the presence of Surratt and of rebel officers at the house of the 
accused, was utterly false. And Dyer, in presence of whom Eglen says the 
threat was made to him, swears he was not in the country then, and no 
Buch threat was ever made in his presence. The other colored servants of 
the accused, Charles and Julia Bloyce, and Betty and Frank Washington, 



10 

say they never heard of such threats having been made ; and J. T. Mudd 
and Dr. George Mudd, and his colored servants Charles and Julia Bloyce, 
and Betty and Frank Washington, describe him as being remarkably' easy, 
uuexacting, and kind to all about him — slaves and freemen. 

From this brief reference to the evidence of the character of the accused, 
1 pass to a consideration of the testimony adduced to prove his connection 
With the conspiracy. 

And, first, as to his acquaintance with Booth. J. C. Thompson says, that 
early in November last Booth went to the house of witness's father-in-law, 
Dr. William Queen, four or five miles south of Bryantowu, and eight or 
ten f om Dr. Aludd's, and presented a letter of introduction from a Mr. 
Martin, of Montreal, who said he wanted to see the county. It does not 
appear who Martin was. Booth said his business was to invest in land and 
to buy horses. He went with Dr. Queen's family to a church next day, in 
the neighborhood of Bryantown, and was there carnally introduced, before 
service, by Thompson, to the accused. After service Booth returned 
to Queen's house, and stayed until next morning, when he left. While at 
Queen's, he made inquiries of Thompson as to horses for sale, the price of 
lauds, their qualities, the roads to Washington, and to the landings on the 
Potomac ; and Thompson told him that the father of Dr. Samuel Mudd 
was a large landholder, and might sell part of his land. On Monday morn- 
ing, after leaving Dr. Queen's, Booth came by the house of the accused, 
who went with him to the house of George Gardiner, to look at some horses 
for sale. The accused lives about one quarter of a miln from Gardiner's, 
("Mary Mudd, Thomas L. Gardiner,) and on the most direct road to that 
place from Dr. Queen's, through Bryantown. fMary Mudd, Hardy. j There 
Booth bought the one-eyed saddle-horse which he kept here, and which 
Payne rode after the attempted assassination of Mr. Seward. Mudd mani- 
fested no interest in the purchase, but after it was made Booth directed 
the horse to be sent to Montgomery's Hotel, in Bryantown, and Booth and 
the accused rode off together in the direction of the house of the accused, 
which was also the direction of Bryantown. Witness took the horse to 
Bryantown next morning, and delivered him in person to Booth there. 
Witness says the horse was bought on Mondaij, but he thinks in the latter 
part of November; though he says he is "one of the worst hands in the 
world to keep dates." 

Thompson further says, that after Booth's first introduction and visit to 
Dr. Queen's, "he came there again, and stayed all night, and left very 
early next morning. I think it was about the middle of December follow- 
ing his first visit there." 

There is nothing whatever to show that Vaidd saw Booth on this second 
visit, or at any other time, in the country, prior to the assassination ; but 



11 

a great deal of evidence that Le never was at Mudds house, or in his im- 
mediate neighborhood, prior to the assassination, except once, and on his 
first visit. I will refer to the several items of testimony on this point. 

1st. Thomas L. Gardiner says he was back and forth at Mudd's house, 
sometimes every day, and always two or three times a week, and never 
heard of Booth being there, or in the neighborhood, after the i.nrchase of 
the horse and before the assassinati n. 

2d. Mary Mudd says she saw Booth one Sunday in November at chnrcli, 
in Dr. Queen's pew, and with his family, and that she heard of his being 
at the house of her brother, the accused, on that visit, but did not hear 
that he stayed all night ; and that on the same visit lie bought the horse of 
Gardiner. She lives at her father's, on the farm adjoifling that of accused, 
and was at his house two or three times a week, and saw him nearly evfi-y 
day on his visits to liis_mother, who was an invalid, and whose attending 
physician he was ; and never saw or heard of Booth, except on that one 
occasion, before the assassination. 

/ 3d. Fanny Mudd, sister of the accused, living witli her fatlier, testitii's 
to the same effect. 

4th. Charles Bloyce was at the house of the accused Saturday and Sun- 
day of each week of last year until Christmas Eve, ("except six weeks in 
April and May, J and never saw or heard of Booth's being theie. 

.5th. Betty Washington CcoloredJ lived there from Monday after Christ- 
mas until now, and never saw or heard of Booth there before the assas- 
sination. 

6th. Thomas Davis lived there from 9th January last. Same as above. 

Nor is there any evidence whatever of Booth's having stdi/cil -ill night 
with the accused on the visit when the horse was bought of (lardiner, or 
at any other time, except that of Col. Wells, who says, that after Mudd's 
arrest, "he said, in answer to another question, that he met Booth some 
time in November. I think he said he was introduced by Mr. Thompson, 
a son-in-law of Dr. Queen, to Booth. I think he said the introduction took 
place at the chapel or church on Sunday morning; that, after the intro- 
duction had passed between them, Tliompson said, Booth wants to buy 
farming lands ; and they had some little conversation on the subject of 
lands, and then Booth asked the question, whether there were any desira- 
ble horses that could be bought in that neighborhood cheaply ; that he 
mentioned the name of a neighbor of his who had some horses that were 
good travellers ; and that he remained loitli him that night, 1 think, and next 
morning purchased one of thoae Worses." Now, it will be recollected that 
Thompson says Booth stayed at Dr. Queen's on that visit Saturday night 
and Sunday night, and Thomas L. Gardiner says the horse was bought 
Monday morning. So that, if Col. Wells is correct in recollecting what 
Mudd said, then Thompson must be wrong. It is more probable that 



12 

Thompson is right, as to Bootli's having spent Sunday night at Queen's. 
Thompson's testimony is slrenytheued, too, by that of Mary Mudd, Fanny 
Mudd, and Charles Bloyce, who would, in all probability, have heard the 
fact of Booth spending Sunday night at the house of the accused, had he 
done so ; but they did net hear it. 

It is here to be observed, that though the accused was not permitted to 
show, by Booth's declarations here, that he was contemplating and nego- 
tiating purchases of lands in Charles county, yet evidence was admitted as 
to his declarations made thern to that ejffect. Dr. Bowman, of Bryantown, 
says that Booth negotiated with him, on one of these visits, for the pur- 
chase of his farm, and also talked of buying horses. And a few days after 
witness had negotiated with Booth for the sale of his farm, he met Dr. 
Mudd, and spoke of the negotiation with Booth, and Mudd said, " Why, 
that fellow promised to bay my land."' It is also shown by Dr. Blanford, Dr. 
Bowman, M. P. Gardiner, and Dyer, ihat Mudd, for a year past, wanted 
to sell hid land, and quit farming. 

Tills, then, is all tliat is shown of any meeting between Mudd and Booth 
in that country before the assassination — a casual introduction at church 
on tiunday in November — Booth going next morning to Mudd's, talking of 
buying Ms farm, and riding with him a quarter of a mile to a neighbor's 
to buy a horse, and their going off together towards Mudd's and Bryantown, 
where the horse was delivered to Booth next morning. 

We will now turn to consider the evidence as to the accused's acquaint- 
ance with John H. Surratt. If he knew Surratt at all, the fact is not shown 
by, nor inferable from, the evidence. Miss Surratt was educated at Bryan- 
town, before the war, and her family lived at Surrattsville, and kept the 
hotel there, ("which is on the road from Dr. Mudd's house to Washington,^ 
until they removed, in October last, to a house on H street, in th s city, 
where they have since resided. fMiss Surratt, Holahan, Weichmann._) 
Dr. '^ILmAA. probably had met Surratt at the hotel at Surrattsville, or, before 
the war, at Bryantown, while his sister was at school ; but it is not shown 
by credible testimony that he knew him at all. Let us examine the evi- 
dence on this point. 

1st. Mary Sims, formerly Dr. Mudd's slave, says that a man whom Dr. 
and Mrs. Mudd called Surratt was at Mudd's house from almost every 
Saturday night until Monday night through the latter part of the winter, 
and through the spring and summer of last year until apples and peaches 
were ripe, when she saw him no more ; and that on the last of November 
she left Dr. Mudd's house. That he never slept in the house, but took din- 
ner there six or seven times. That Andrew Gwynn, Bennett Gwynn, Capt. 
Perry, Lieut. Perry, and Capt. White, of Tennessee, slept with Surratt in 
the pines near the spring, on bed-clothes furnished from Dr. Mudd's house, 



13 

and that they were supplied by witness and by Dr. Mudd with victuals 
from the house. That William Mudd, a neighbor, and Rachel Spencer, 
and Albin Brooke, membtrs of Mudd's household, used to see Surratt 
there then. She says that the lieutenants and officers had epaulettes on 
their shoulders, gray breeches with yellow stripes, coat of same color 
and trimming. Their horses were kept in Dr. Mudd's stable, by Milo 
Sims. 

2d. Mile Sims, brother of Mary, fourteen years old, formerly slave of 
Dr. Mudd, left there Friday before last Christmas. Saw two or three men 
there last, summer, who slept at the spring near Dr. Mudd's house. Bedding 
taken from the house ; meals carried by Mary Sims, generally, though 
they sometimes ate in the house, and they all slept at the spring, except 
one called John Surratt, who slept once in the house. Don't say how long 
they stay<-d. It was in "planting tobacco time." He attended their horses 
in Dr. Mudd's stable. 

3d. Rachel Spencer, slave of Dr. Muild and cook at his house, left him 
early in January, 1805 ; saw five or six men around Dr. Mudd's house 
last summer; slept in the pines near the house, and were furnished with 
meals from it. Were dressed in black and blue. IVere there only a week, 
and never sate them there before or since. She heard no names of the men 
■except Andrew Gwynn and Watt Bowie. That Albin Brooke lived at Dr. 
Mudd's then, and was with these men occasionally. 

4th. Elzee Eglen, formerly Dr. Mudd's slave, left him 20th August, 1863 ; 
saw a party sleeping in the pines, by the spring, near the house, summer 
before last. Knew Andrew Gwynn^ and lie was one of tliem ; did not recol- 
lect any other names. Mary Sims carried them meals, and Milo Sims at- 
t'-nded the horses in Dr. Mudd's stable. Some wore gray clothes with 
brass buttons, but without other marks — some black clothes. Did not 
say how many there were, nor how long they stayed. 

5th. Melvina Washington, formerly Dr. Mudd's slave, left him October, 
1863; saw party sleeping in the pines near the house summer before last; 
victuals furnished from the house. Party stayed there about a week, and 
then left, home were dressed iu gray, and some in short jackets with 
little peaks behind, with black buttons. She saw them seven or eight 
times during one week, and then they all left, and she never saw any of them 
at any other time except during that week. That Andrew Gwynn's name 
was the only one she heard ; that Mary Sims used to tell her, when the 
men were there, the names of others, but she had forgotten them. 

That these live witnesses all refer to the same party of men and the 
same year is certain, from the fact that Elzee Eglen says that Mary Sims 
carried the party he describes as being there la the summer of 1863 their 
victuals, and that Milo Sims kept their horses iu the stable ; and Melvina 
Washington says Mary Sims used to tell her the names of the party which 
•2 



14 

the describes as being there in 1863; and also from the fact that all of 
them, except Milo Sims, named Andrew Gwynn as being one of the party, 
I will not waste the time of the Court in pointing out to it in detail the dis- 
crepancies in their evidence apparent from the foregoing synopsis of their 
testimony ; and therefore, only calling its attention to- the fact that all of 
these witnesses were living with Dr. Mudd during land after the year 1861^ 
("Dyer, ^ down to the several dates given above, when they respectively 
left, I will proceed to show from the evidence what and when the occur- 
rences really were about which they have testified. 

1. Ben. Gwynn fnamed by Mary Siirs as one of the party^ says : 

" Q. Will you state whether during last summer, in company with Cap- 
tain White, from Tennessee, Captain Perry, Lieutenant Perry, Andrew 
Swynn, and G«orge Gwynn, or either of them, you were about Dr. Sam- 
uel A. Mndd's house for several days ? A. I was not. I do not know any 
of the parties nam<?d, and I n«ver heard of them, except Andrew Gwynn 
and George Gwynn. 

Q. Were you with your brothers, Andrew Gwynn and George Gwynn^ 
about Dr. Mudd's house last year ? A. No, sir. I have not been in Dr, 
Mudd's house since about the first of November, 1861. I have not bee» 
on his place, or nearer his place than church, since about the Gth of No- 
vember, 18G1. 

Q. Where did you and the party who were with you near Dr. Mudd's 
sleep? A. We slept in the pines- near the spring. 

Q. How long were you there ? ■ A. Four or five days. I left my neigh- 
borhood, and went down there and stayed around in the neighborhood — 
part of the time at his place, and part of the time elsewhere. He led U3 
there — gave us something to eat, and. had some bed-clothing brought out 
of the house. That was all. ^' 

He further said, that the party was composed of his brother, Andrew 
Gwynn, and Jerry Dyer, who, on the breaking out of the war, were, lika 
all the people of that section, panic-stricken, and apprehending arrest ; that 
he came up to Washington on the 10th of November, gave himself up, found 
there were no charges against him, too'k the oath, and went back home^. 
That John H. Surratt, when this party were there, was at college, and wit- 
ness never saw him in Charles county then or since. That his brother, 
Andrew Gwynn, went South in the fall of 1861, and was n-ever, to his know- 
ledge, back in that county but once since, and that was last winter some- 
time. He corrected his statement as to when the party were there, and fixed, 
it in August, 1861. 

2d. Jerry Dyer, brother-in-law of the accused, testifies to the same a* 
Ben. Gwynn. Says he and the two Gwynns were members of companies 
organized by authority of Governor Hicks for home protection in 1860 ^ 
were present on parade ia Washington at the inauguration of a statue, on 



15 

tae 22(i of February, 1860. When the war broke out the companies were 
disbanded ; many of the members going South, and many of tliose who 
remained in Charles county scattering about from rumors of arrests ; that 
there was a general panic in the county then, and almost everybody was 
leaving home and "dodging about ;" that while he and the two Gwynns 
slept in the pines these three or four days, Mary Sims carried them vict- 
uals from the house, and Milo Sims attended to the horses in Mudd's sta- 
bles ; that they were dressed in citizens' clothing; that Andrew Gwynn 
went Soiith in the fall of 1801 ; witness never heard of his being back 
since ; that Surratt was not there then, no •, so far as he knows, since. 

3d. WilliaiQ Mudd, a near neighbor of the accused, named bv Mary Sims 
as having seen the party she describes, says he saw Benjamin Gwynn thero 
in 1861, but saw none of the others, then or since. 

4th. Albin Brooke, referred to by Mary Simms and Rachel Spencer as 
having seen the party they describe, ("and by Mary Sims as having seen 
Surratt especially, j says he knows Surratt, having met him in another 
county once, and knew Benjamin Gwynn and Andrew Gwynn, but that he 
never saw Surratt with any of the men named by Mary Sims at Dr. Mudd's, 
nor heard of his having ever been there ; never heard of Andrew Gwynn being 
back from Virginia since 1861. That he lived at Dr. Mudd's from the 1st 
of January to between the 1st and the 15th of September of last year, and 
was at the stable morning, noon, and night, each day, and was about the 
spring daily; while there never saw any strangers' horses in the stable, 
nor any signs about the spring of persons sleeping there ; but that, while 
living near Dr. Mudd's, in the summer of 1861, he knew of Ben. and An- 
drr-w Gwynn and Dyer sleeping in the pines there. 

5th. Mrs. Mary Jane Sims boarded, or was a guest, at Dr. Mudd's all last 
year, except through March ; knew Andrew, Ben., and George Gwynn, and 
John H. Surratt. Never saw or heard of any of them there, nor of any of 
them sleeping in the pines. 

6th. Frank Washington ("coloredj lived at Dr. Mudd's all last year; knew 
Andrew Gwynn by sight ; never saw or heard of him or Surratt, Cof whom 
a photograph was shown him,^ or of any of the men named by Mary Sims, 
being there, or of any men being there in uniform ; at the stable three 
times daily, and often at the spring, and saw no strange horses in the stable ; 
saw no signs of men sleeping about the spring. 

7th. Baptist Washington, carpenter, at work there putting up kitchen, 
&c., from February till Christmas last year, except the month of August ; 
same as above, except as to knowledge of Andrew Gwynn. ("Photograph 
of Surratt shown him.^ 

8th. Charles Bloyce, ("colored, _) at Dr. Mudd's through every Saturday 
,and Sunday all last year, except from 10th April to 20th May ; same as 
Frank Washington, except as to knowing Andrew Gwyuu. 



16 

9th. Julia Ann Bloyce, ("colored cook,^ there from early in July to 23d 
December, 1864 ; same, substantially, as Frank Washington ; knew Ben. 
and Andrew Gwynn. CPhotograph of Surratt shown witness. _) 

lOtb. Emily Mudd and Fanny Mudd live on adjoining farm to Dr. Mudd, 
at his father's ; at his house almost daily for years ; knew of the party in 
the pines in 1861, composed of Dyer and the two Gwynns ; knew Andrew 
Gwynn well ; hever heard of his being back from Virginia since 1861, nor 
of Sarratt ever being at Dr. Mudd's, nor of any of the others named by 
Mary Sims, except the Gwynns, in 1861. 

11th. Henry L. Mudd, Jr., brother of the accused, living at his father's ; 
same as above as to Surratt. 

None of the five witnesses, whose testimony has been shown false in all 
essential parts by the evidence of the twelve witnesses for defence, referred 
to above, said that Surratt was one of the party sleeping in the pines, ex- 
cept Mary and Milo Sims. These two witnesses are shown to have estab- 
lished reputations as liars, by the evidence of Charles Bloyce, Julia Ann 
Bloyce, and Frank, Baptist, and Betty Washington. So all that testimony 
for the prosecution, of the "intelligent contrabands," wiio darkened the 
counsels of the court in this case, is cleared away. The only part of it at 
all admissible under the rules of evidence, or entitled to the coasideration 
of the Court, was that showing Surratt was intimate with Mudd, and often 
at his house last year and year before ; and that, like nearly all the rest of 
their testimony, has been conclusively shown to be false. 

Another witness, who testifies to implicate Mudd as an associate of Sur» 
ratt, is William A. Evans, who said he saw Mudd some time last winter 
enter a house on H street, just as Judson Jarboe, of Prince George's coun- 
ty, was going out of it ; and that Jarboe was then shaking hands with a 
young lady, whom witness took to be a daughter of Mrs. Surratt, from her 
striking likeness to her mother, he having known or seen all the family ; 
and that he stopped a policeman on the street, and asked whose house it 
was, and he said, " Mrs. Surratt' s ; " and that he drove up to the pave- 
ment, and asked also a lady who lived near by, and she said the same. He 
said this house was between Eighth and Ninth, or Nii.th and Tenth — he 
was not perfectly certain as to the streets, but teas certain it was between 
the Patent rflice and the President's. Through an hour's cross-examina- 
tion, he fought by equivocation, or pleading defect of memory, against fix- 
ing any circumstance by which I could learn direc ly or indirectly the day 
or the month when it occurred, and, finally, he could only say it was 
"sometime last winter." Although his attention had been so strongly 
attracted to the house, he first said it was on one side of the street and 
then on the other ; and could not tell whetLer it had any porch or any 
portico, nor describe its color, nor whether it had a yard in front, nor 
whether it was near the centre of the square, nor describe a single houstt 



17 

on either side of the same square. He said he knew Dr. Samuel Mudd, 
having met him first at Bryantown church, in December, 1850. 

Every material thing he did say, which was susceptible of being shown 
false, has been so shown. 

1st. Mrs. Surratt's house is not between tlie Patent Office and the Presi- 
dent's, but next the corner of Sixth. (Weichmann, Holahan, Miss Surratt._) 

2d. Miss Surratt, an only daughter, says she never saw or heard of 
Samuel Mudd being at her mother's house, nor heard his name mentioned 
in the family, and never met Judson Jarboe there or elsewhere before the 
assassination. 

3d. Miss Fitzpatrick, who boarded at Mrs. Surratt's from the 6th of Oc- 
tober last to the assassination, and Holahan, who was there from the first 
week of February last, never saw either Mudd or Jarboe there, or heard of 
either being there, or the name of either mentioned in the family. 

4th. Weichmann, who boarded there through last winter, never heard 
of Mudd being at the house. 

5lh. Judson Jarboe says he never was at Mrs. Surratt's house, or met 
Dr. Mudd or Miss Surratt in Washington before the assassination. 

6th. Mary Mudd says Samuel Mudd was at Frederick College, at Freder- 
icktown, Maryland, in December, 1850, and was not at home during the 
collegiate year, beginning in September of th. t year ; and Rev. Dr. Stone- 
street, who was president of that college until December of that year, tes- 
tifies the accused was then entered as a student there, and could not by 
the rules of the college have gone home. 

This witness, Evans, boasted often to the Court that he was a minister 
of the Gospel, and reluctantly admitted on cross-examination that he was 
also one of the secret police. In his reckless zeal as a detective, he forgot 
the ninth commandment, and bore false witness against his neighbor. It 
is to be hoped his testimony that he is a minister of the Gospel is as false 
as his material evidence. I feel bound in candor to admit, however, that 
his conduct on the stand gave an air of plausibility to one of his material 
statements — that for a month past he has "been on the verge of insanity." 

I have now presented and considered all the testimony going to show 
that Mudd ever met Surratt at all, and all that he ever met Booth, before 
the assassination and after the first visit Booth made to Charles county — 
except the testimony of Weichmann, which I will now consider. 

That witness says that about the middle of January last, he and Surratt 
were walking down Seventh street one night, and passed Booth and Mudd 
walking up the street, and just after they had passed, Mudd called "Sur- 
ratt, Surratt." Surratt turned and recognized Mudd as an old acquaint- 
ance, and introduced Mudd to witness, and then Mudd introduced Booth 
to witness and Surratt. That soon after the introduction Booth invited 



18 

them all to his room at the National Hotel, where wine and cigars were 
ordered. That Dr. Mudd, after the wines and cigars came, called Booth 
into the passage, and they stayed there five to eight minutes, and then 
both came and called Snrratt out, and all three stayed there about as long 
as Mudd and Surratt had stayed, both interviews together making abou* 
ten to twenty minutes. On returning to the room, Dr. Mudd seated him- 
self by witness, and apologized for their private conversation, saying, 
*' that Booth and he had some private business — that Booth wished to pur- 
chase his farm." And that, subsequently. Booth also apologized to him, 
giving the same reason for the private conversation. Booth at one time 
took out the back of an envelope, and made marks on it with a pencil. " I 
should not consider it writing, but more in the direction of roads or lines.'* 
The three were at that time seated round a centre table in the middle of 
the room. "The room was very large — half the size of this court room." 
He was standing when this was done within eight feet of them, and Booth 
was talking in a low tone, and Surratt and Mudd looking on the paper, but 
witness heard no word of the conversation. About twenty minutes after 
the second return from the passage, and after a good deal of general con- 
versation, they all walked round to the Pennsylvania House, where the 
accused sat with witness on a lounge, and talked about the war, '"ex- 
pressed the opinion that the war would soon be over, and talked like a 
Union man." Soon after getting there. Booth bid the accused good night, 
and after Booth left, witness and Surratt followed, at about half-past ten 
o'clock. 

It will be observed that the only men spoken of by this witness as hav- 
ing seen the accused on this occasion are Booth, who is dead, and Surratt, 
who is a fugitive from the country. So there is no one who can be called 
to confirm or confute his statements, as to the fact of these men being to- 
gether, or as to the character of the interview. But there was one fact 
about which he said he could not be mistaken, and by means of which his 
evidence against Mudd is utterly overthrown. That is, he alleges the 
meeting was about the middle of January, and fixes the time with certainty 
by three distinct circumstances : 

Ibt. He made a visit to Baltimore about the middle of January, and 
near the date of this meeting. 

2d. He had, before the meeting, got a letter, which he received on the 
16<A of January. 

3d. It was after the Congressional holidays, and Congress had resumed 
its session. He recollects this fact of itself, and is confirmed in his recol- 
lection by the fact that Booth's room was one a member of Congress had 
occupied before the holidays, and which was given Booth, as he learned, 
until the member, who had been delayed beyond the time of the reas- 
sembling of Congress, should return. Booth told him this. 



19 

In refutation of this evidence, we have proved, beyond all controversy? 
tha^ Dr. Mudd was not in Washington /Vom the 23a' of December to the 2'5d 
of March. 

On the 23d of December he came to Washington with J. T. Mudd, who 
Bays they left their liorses at the Navy Yard, and went into the city at 
dark, on the street cars, and registered at the Pennsylvania House. They 
then went out and got supper at a restaurant, and then went to the Metro- 
politan Hotel and stayed there together a quarter of an hour, and then to 
the National, where witness met a friend, and became separated in the 
crowd from accused. Witness strolled out and went back to the Penn- 
sylvania House, to which accused returned in a few minutes after he got 
there. He saw and heard no one with the accused, though there might 
have been persons with him in the front part of the room, ("which was 
separated from where witness sat by open folding doors, ^ without witness 
seeing them. Witness and accused then went to bed ; were together all 
next day ; were about the market together, and at the store making pur- 
chases ; were not at the National Hotel, and left the city about one o'clock 
iu the afternoon of the 24th, and returned home together. Witness never 
saw Booth, except on his visit to Bryantown in November. We have 
shown by the evidence of Lucas, Montgomery, Julia Bloyce, and Jerry 
Mudd, that accused came here on that visit on a sufficient and legitimate 
business errand — to purchase a cooking-stove and other articles, which he 
bought here then. 

On the 23d of March, Lewellyn Gardiner said accused again came to 
Washington with him to attend a sale of condemned horses, but that the 
sale did not occur at that time. They got to Washington at 4 or 5 p. m., 
left their horses at Martin's, beyond the Navy Yard, and went about look- 
ing at some wagons for sale, and went then to the Island to the house of 
Henry Clark, where they took tea. They spt^ut the evening at Dr. Allen's 
playing whist ; slept together that night at Clark's, and after breakfast 
next morning went through the Capitol looking at the paintings in the 
Rotunda, and returned to Martin's at dinner, and after dinner left and re- 
turned home. Accused was not separated from or out of sight of witness 
five minutes during the whole visit, and did not go to any of the hotels or 
to the post office, or see or inquire for Booth. Dr. Allen, Clark, Martin, 
Thomas Davis, Mary Mudd, Henry Mudd, and Betty Washington, confirm 
witness as to the objects or incidents of the visit. 

On the 11th of April, three days before the assassination, while Booth, 
as appears by the hotel register, was at the National in this city, accused 
came to Giesboro to attend the sale of Government horses, which he and 
Lewellyn Gardiner had come on the 23d of March to attend. Though in 
sight of Washington, he did not come into the city, but took dinn-r at 
Martin's, and after dinner left and returned home. On this visit he stayed 



20 

all niglit at Blan ford's, twelve miles from the city comiug up, but not re- 
turning. CLewellyn Gardiner, Henry L. Mudd, Dr. Blanford, Martin, 
Davis, Betty Washington, Mary Mudd._) ^ 

On the 26th of January he went with his wife to the house of his neigh- 
bor, George H. Gardiner, to a party, and stayed till daylight. ("Betty 
Washington, Thomas Davis, Mary Mudd.} Except for one night on the 
occasion of each of those four visits — two to Washington, one to Giesboro, 
and one to Gardiner's — accused was not absent from home a night from 
23d December until his arrest. fBetty Washington, Thomas Davis, 
Henry L. Mudd, Mary Mudd, Frank Washington, j 

After the evidence for the defence above referred to had been introduced, 
refuting and completely overwhelming Weichmann's testimony and all in- 
ferences as to Dr. Mudd's complicity with Booth which might be drawn 
from it, a new accuser was introduced against him on the same point in 
the person of Marcus P. Norton, who said that at half-past 10 o'clock, on 
the morning of the 3d of March, as he was preparing his papers to go to 
the Supreme Court to argue a motion in a patent case there pending, 
("which motion the record of the Court shows he did argue on that day,_) a 
stranger abruptly entered his room and as abruptly retired, saying he was 
looking for Mr. Booth's room; and though witness never saw Dr. Mudd 
before or since, until the day of his testifying, he says that stranger is 
the prisoner at the bar. He could not tell any article of the stranger's 
clothing except a black hat. Wm. A. Evans, a part of whose evidence we 
have hereinbefore considered, comes to the support of Norton, by saying 
that early on the morning of either the 1st, or 2d, or 3d of March, Cwit- 
ness is certain it was one of those three days, ) Dr. Mudd passed witness 
on the road from Bryantown to Washington, a few miles from the city, 
driving a two-horse rockaway, and there was a man in with him, but 
whether a black or a white man witness could not recollect. Fortunately 
for the accused, the 1st day of March was Ash Wednesday — the first day 
of Lent — a religious holiday of note and observance in the community of 
Catholics among whom he lived. Fortunately for him, too, his sister Mary 
was taken ill on that day, and required his medical attendance ("at her 
father's houe, on the farm adjoining his own, thirty miles from Washing- 
ton} each day from the 2d to the 7th of March, inclusive. By the aid of 
these two circumstances we have been able to show by Thomas Davis that 
accused was at home at work on the 28th of February, ("the day before 
Ash Wednesday ;) by Dr. Blanford, Frank Washington, and Betty Wash- 
ington, that he was there at work at home on the 1st of March ; by Mary, 
Fanny, Emily and Henry L. Mudd, Betty and Frank Washington, and ThomaS 
Davis, that he was there on the 2d, 3d, 4th, and 5th of March, at various 
hours of each day. At or within two hours of the time when Norton says 



21 

be saw fhe accused enter the room at the National, ("UH A. M., 3d of 
March,) Mary, Eiuily, Fanny, and Henry L. Mud.l, Frank and Betty 
Wasliington, Tlidiuas and Jokn Davis, all teslit'y most euipliatically to 
iiaving seen him at his house, on his farm, or at his father's house adja- 
cent to his own — six hours' ride from Washington ! We have sllown, too, 
•by Mary Mudd, that the accused has always worn a lead-colored hat when- 
■ever she has seen him this year, and that she has seen him almost daily; 
and by Ifenry Mudd, Dr. Blaaford, and Miry Mudd, that neither he nor 
his fatiier owns a rockaway. Now, Norton either saw the accused enter 
his rooju on the morniui; of the 3d of March or not at all, far his evidence, 
clinched as to the date by the record of the Supreme Court, excludes the 
supposition that he could have been mistaken us to the. dny. Nor can these 
eight witnesses for the defence be mistaken as to the d^y, for the incidents 
by which they -recollect Mudd's presence at home fix the time in their 
iueinories exactly. With all this evidence before the Court, it cannot hesi- 
tate to hold the alibi established beyond all cavil. 

The onl3- other item of evidence as to anything done or said by Dr. 
M-Htld, or by anybody, before the assassination, tending in the least to show 
Iiim implicated in the conspiracy, is the evidence of Daniel J. Thomas, who 
says that several weeks before the assassisiation he met Mudd at the house 
of his neighbor, Downing, and tiiere, in the course of conversation, Mudd 
said Claughinglyy that "Lincoln and his whole Cabinet, and every Union 
man in the State of Mar^^land, would be killed within six weeks." Witness 
said he wrote to Col. John C. Holland, provost marshal of that district, at 
Ellieott's Mills, before the assassination, advising him of Mudd's statement. 
But Col. Holland says he got a letter from witness about that time, and 
there was not a word of the statement in it, nor a reference to the accused, 
nor to any statement by anybody about killing anybody. Thomas says he 
itold his brother. Dr. Thomas, of the declaration before the President was 
killed, but his brother sa\-s emphatically he did not tell him until after 
Mudd's arrest — the boot fo«ud at Mudd's house having been named in the 
same conversation. Thomas says he told Mr. Downing about it before the 
assassination, but Downing says emphatically he did not tell him a word 
a,bout it at ani] time.. Downing also says that he himself was jjresent every 
moment of the time Mudd and Thomas were together at his house, and 
heard every word said by either of them, and Mudd did not make that 
statement, nor lefer to the President, or the Cabinet, or the Union men of 
Maryland, at all, nor say a word about anybody being killed. He says 
however, Mudd, when Thomas was bragging and lying about being a pro- 
vost marshal, did tell him, "he was a jack" — which insult was doubtless 
an incentive to the invention of the calumny. But it was not the onl(] in- 
oentive. Thomas knew that if that lie could be palmed off on the Judge 
3 



22 

Advocate and the Court for tratli, it might lead to Miidd's arrest and ccm- 
victiun as one yf the conspirators. He had, on Tuesdiy, hefore Mudd's 
arrest, a,iijl bel'ore this tie was coined and eircvLlated, Leen joostiijg hand- 
bii's, containing the order of the War Department ofierlug liberal rewards 
for any information leading to the airebt of liiioth's accompliiies, ami he- 
tiien, <loubtle»s, conceived the idea of at once getting reward in money 
from the Government for his informatien, audrevvnge on Mudd for his in- 
sult in Downing's house. 

That he gave that evidence corruptly is shown by Wm. Watson, .Jonn 
11. Kicliardsoii, and Benjamin Naylor, who say that Thomas, after testify- 
ing against Mudd, went to see them, and said, that '■'■ij Dr. Mudd leas con- 
victed ajjon Ins iealimont/. lie would thm hare ijii-en conslusive eridence that he 
yave the informatwn that led to the detection <f the con^jjirator t^'' " ^e then 
asked Mr. Binjuiinn J. Nnjjlor if he did not mention to him and Gthhons, be- 
fore the killing of the President, the languaye that Dr. Mudd had used. Mr. 
2\iiijlor said that he had never done it, hefore or after!" '■''He said his por- 
tion of the reward ought to be $10,000 — and asked me ( Watson) if [ would not, 
as the best logal man in Piince Geor(/e''s cou-ntg, give him a cerlifciite of how 
nitich he ought to be intithd to." The testimony of Richards, and of Eli J. 
Watson, coupled with Thomas's testimony in denial of these statements,, 
fill the record of infamy of this false witness. 

To accumulate evidence tliat Thomas's statement is utterly -anreliable, 
the defence brought over twenty of his neighbois, who testified that he- 
Kould- not be believed on oath — among whom were Naylor, Rohey, Richards, 
Orme, Joseph Water.s, John Waters, J. F. Watson, Eli Watson, Smith, 
Baden, Dickens, Hawkins, Monroe, and others, of undisputed loyalty, 
nearly all of whom had known him from boyhood. His brother, Dr» 
Thomas, testifies that lie is at times deranged ; and Dr. Geo. Mudd says 
he is mentally and morally insane. And, although Thomas's evidence was 
the most important in the case against Dr. Mudd, the Judge Advocate has 
not seriously attempted to sustaiir him— has not tried to show that he ever 
told or hinted at this story to anybody before the assassination — and 
has not asked one of the scores of witnesses for the prosecution in attend- 
ance from Thomas's neighborhood a question as to his reputation for ve- 
racity — except Wm Watson, who said it was decidedly hud. A feeble at- 
tempt was made to sustain him, by endeavoring to show that he was a 
zealous supporter of the Administration, and that, therefore, the general 
voice of his community was against him. But we showed he was a rebel 
at the beginning of the war, and an opponent of the Administration at the 
last ell ction — and then the Judge Advocate dropped him ! 

This is all the evidence of every act or word done or said by anybody, 
prior to the assassination, tending in the remotest degree to connect Mudd 



23 

with the conspiracy. It consists, in large part, ef the testimony of t'rm 
five negroes, as to tlie Confederate officers frequenting Madd's house last 
year and the year before — two of tliem, Milo and Mary Siui<, as to Siirratfs 
visiting his house last year — of Evans as to Mudd's going to Surratt's house 
last winter — of Evans ard Norton as to Mudd being here on the 3d of March 
— of Weichmaun as to 'the interview between Mudd. Booth, and S\?rratt, 
:about the inid<lle of Januarj — and of Thomas as to Miidd"s prediction of 
ttlie assassination in March. I venture lo say.^ that rarely in the annals of 
•criminal trials lias the life of aii accused been assailed by such an array o^ 
false testimony as is exhibited in the evidence of these nine witnesses — and 
rarely has it been the good fortune of an innocent man, arraigned and on 
trial for his life, to so confute and overwheku his accusers. I feel it would 
■be a waste of time aiid an imputation on the intelligeni:e of the Court to 
•delay it, with fuller discussion of the evidence of these witnesses — and feel 
sure it will cast their testiiuoiiy from its deliberations, or recollect it only 
to reflect how foully and mistakenly the accused has been assailed. 

Having now discussed all the evidence adduced that calls for discussion, 
•or may by possibility be relied on as sliow ing Mudd's acquaintance with 
Booth, or connection with the conspiracy, and having, I think, shown that 
there is no reliable evidence that he ever met Booth before the assnssina- 
tion but once on S^unday, and oui'e the day following, in November last, I 
will proceed to a consideration of the testimony relied on to show that he 
Icnowingly aided the escape of the assassin. 

First Wliy did Booth go to Dr. Mudd's and stop there from daybreak 
till near sundown on his flight ? I answer, because he had a broken leg 
and needed a physician to set it. And as to the ien(ith of the stay, the 
wonder is he was able to ride off on horseback with his broken and swollen 
limb at all — not that he took t^n hours' rest. The Court will observe, from 
the map in evidence, that Booth, taking Surrattsville in his route to I'ope's 
Creek, opposite Mattliias Point, where he crossed the Potomac, ("Captain 
Doherty.) travelled at least eight or ten miles out of his way, to go, after 
leaving Surrattsville, by Dr. Mudd's. (See Dyer's testimonyj Would he 
have gone that far out of his route to the Potomac crossing if he had not 
broken his leg ? Or was it part of his plan to break it .' Obviotr-;ly, he 
could not in advance have planned to esi;ape by crossing the ' fituxcn/, nor 
to evade his pursuers by lying conceal<rd in Charles county, within six 
hours' ride of Washington. He must, as a sane man, have contemplated 
and planned escipe across the Potomac into Virginia, ami thence South 
or abroad ; and it could never have been part either of the plan of abduc- 
tion, or of that of assassination to go the circuitous route to a crossing of 
the Potomac by Bryantowu or Dr. Mudd's. So that the fact of Booth going 
to the hous(! of the accused, and stopping to get his leg set and to rest, 
does not necessarily lead to any conclusion unfavorable to the accused. 



24 

Booth got there, with Herold, about daybreak, ("Frank WashiirgtoTi.) 
He usually wore a moustache, ("see photograph,^ but he then wore heavy 
whiskers, and had liis face muffled in a shawl, so as to disguise him. The 
disguise was kept xip all day. fCol. Wells. J He was taken to a lounge in the 
hall, and then to a front room up stairs, where the broken bone was set^ 
where a fee of $25 was paid for the service, and where, it is ppoliable, he 
slept most of the day. They represented that the leg had been broken by 
a fall of the horse ; that they had come from BryanWwn, and were going 
to Parson Wilmer's. After breakfast accused went to his field to work. 
Herold, whom Mudd had never met, CCol. Wells, ^ came down to break- 
fast and dinner with the family, and after dinner he and Mudd went oif to- 
gether to the house of Mudd's father, to get ajamily carriage to take the 
wounded man to the house of Parson Wilmer, five miles off, at Pint y Chop- 
el. fLovett Wells. ^ Now, can any man suppose for a moment that Muild, 
at this time, had the slightest su&picion or intimation of the awful trage ly 
of the night before ? Could he, knowing or suspecting the crime or the 
criminal, have thus recklessly given himself up to arrest and trial, by 
publicly aiding the escape of the assassin ? Could he have been ready to- 
expose his old father to suspicion by thus borrowing his carriage, which 
would have been noticed by every man, woman and child on the road, to- 
carry off the assassin? Impossible! I need nothing more of the Couit 
than its consideration of this fact, to clear the accused of all suspicion 
of having, up to that time, known or suspected that a crime had bei c 
committed by the crippled stranger, whom he was thus openly and kindly 
seeking to aid. 

But the carriage could not be got, and Miidd and Herold rode off towards 
Bryautown to get one th^^re. Colonel Wells tbinks the accased told him 
that Herold turned back when gettin? one and a half miles from the elder 
Mudd's house, saying he could take his friend otf on hor&eback. Betty 
Briscoe and Eleanor Bloyce, however, say they saw a man riding towards 
Bryantown with the accused, who turned back at the bridge at the edge 
of the town. 

Mudd made some putclvises of calico and other articles, and heard of the 
assassination. ("Bean, j It was not generally known tlien among the citizens 
who was. the assassin. ("Bean, Roby, Trotter, B. W. Gardiner, M. L. Mc- 
Pherson, John McPherson.^ In fact it was not generally krK>wn with cer- 
tainty at the theatre, or iu Washington, Friday night, whether Booth was 
the murderer. ("Gobright.^ In Bryanto^vn it was commonly understood 
that Boyle, a noted desperado of that region, who assassinated Captain 
Watkins last fall, was one of the assassins. (M. L. McPherson, Bean, Trot- 
ter, Roby.^ It was not known that the murilerer had been tracked into 
that neighborhood. fBean, Dr. George Mudd.j Lieutenant Dana told Dr. 
Geoige Mudd, Saturday afternoon, that Boyle assassinated Mr. Seward 



25 

and Booth the President, but that he thought Booth had not then got out 
of Washington. Even next day (sundayj it was reported there that it 
was Edioin Booth who killed the President. 

The accused lel't Bryantown about four o'clock to return home. Belty 
Bri-coe says the same man who had turned back at the bridge stopped in 
the edge of a branch, which tlie road crosses a couple of hundred yards 
from the bridge, untii Mudd returned from town, and then they rode off 
together across the branch, " uj) the road." But B<i(jz says he saw Mudd 
a couple of hundred yards beyond that crossing leisurely going through 
the farm Booz lives on, by a i ear-cut which he usually travelled, alone; 
and that he would himself have probably noticed t .e man at the crossing, 
which was in full view of where he was, had he been waiung there ; and 
would have certain/ij noticed him had he been with Mudd travelling the 
main road, when Mudd turned into the cut-off through the farm — '^)ut he 
saw noonebut the accused S>i-.an .'ilewarl also saw Mudd in the by-road 
returning home aione, and did not see any man going the main road, which 
was in full view. I call the attention of the Court to the plat by which 
the bi anch and these roads are shown, and to the fact that there is ni> road 
turning off from the main road between Booz's place and Bryantown, ex- 
cept the side road l)y Booz's house. If further refutation of the tf-stiiAony 
of Betty Briscoe on this point be recjuired, it is fouud in the evidence uf 
Privius Ju/i)ii>on, who saw Herold pass the elder Mudd's in the main road, 
going towards the house of the accused, and sometime after that, himself 
caught a h'.rse in the pasture, and rode towards Bryantown, and met and 
passed Dr. Mudd coming leisurely from Bryantown. ulnne. <it Booz's farm ; 
and that from the time he saw Ilerold until he met and pissed Mudd was 
full an hour and a half. And in the evidence of Jolm Acton, who was on 
the roadside, three miles from Bryantown. when Harold passed, at between 
three and four o'clock, and who remained there an hour, and Dr. Mudd 
did not go by in that time. A>-ton also says, that, between the time Hrrold 
and .Mudd went towards Bryantown an;l the time Ilerold returned alone, 
was but three-quarters of an hour. Fiom the fact that Herold could not 
have ridden to the bridge and back in that time, ('■-i.x mihs.J it seems 
highly probable that he did not go to the bridge, but turned back about 
where Colonel Wells thinks Mudd said he did. But however that may be 
is not important, as it is certain from the evidence of these four witnesses 
that Herold did not wait at thi; branch for Mudd's return from Bryantown. 

As Mudd rode iiome, he turned out of his way to see his neighbor, 
Ilaxslij, Cwiio lives half-way between the house of the accused and Bryan- 
town. J about some rail-timber he had engaged there. The house is not 
in view of the road, a clump of pines intervening, lie told Hardy and 
Farrell of the news. Hardy says : 

"He said to me that thtre was terrible news now, that the President and 



26 

Mr. Steward and lii.s son had been assassinated the evening before. Seme- 
thing was said in that connection about Boyle ("the man who is said to 
have killed Captain WatkinsJ assassinating Mr. Seward. I remember that 
Booth's name w.is ra-ntioned in the same connection, an. I I asked him if 
Booth was tlie man who had been down there. His reply was that he did 
not know wlietlier it was that man or one of his brothers ; he understood 
tliat he had some brothers. That enle<l the conversation, except that he 
he. said it ivaa oil'', of the mo-it terrible culaiitities that could have hi fallen the 
couiitri/ (It thii< time. 

" Q. Did you say that it was understood or said tha" Booth wa.=; the 
assassin of the President? A. There was some such remark made, but I 
do not exactly remember the remark." 

Th^y both say he seemed heartily sorry for the calamity, and that he 
said Jie had just comc from Biyantown, and iieard the news there. Hardy 
says he stayed there only about ten minutes, anrl left just about sundown. 
Farrell corroborates ^^rdy as to the conversation, except that he reports 
nothing as to Boyle's name bdng mentioned ; but he says the conversation 
was going on when ho joined Hardy and Mudd. He says the house is less 
than a qnai-ter of a mile off the roal, and tbat accused starved there about 
fift*?n minutes. 

Now, I ar-k the Court, what is there uji to this point to indicate that 
Miidd knew or had any suspicion tliat the broken-legged man was impli 
cat d in the crime .' If there is anything in proof showing that fact, I fail 
to find it. True, he had met Booth twice in November — five months before. 
Had seen him tnat dark, cloudy morning, at day- break, faint with fatigue 
and suffering, muftJed in his shawl and disguised in a heavy beard ; had 
ministered to hiniin the dim light of a candle, whose rays struggled with 
the dull beams of the opening day; Had seen him, perhaps, sleeping in tlie 
darkened chamber, his moustache then shaved off, his beard still on, Iris 
^'ffort at concealment still maintaineil. C Wells. J And here let me remind 
the Court, that tiiere is nothing in the evidence showing that Booth spoke 
a Word — Out where either of the men are referred to as saying anything, 
"the smaller man" was the spokesman. Let it be remembered too that 
Booth was an actor, accustomed by years of professional practice to disguise 
his person, his features, and his tones — so that if Mudd had been an inti- 
mate associate, instead of a mere casual acquaintance, it would have been 
«asy for Booth to maintain a disguise even when subjected to close scru- 
tiny render circumstances favorable to recognition. If tlie Court will also 
consiiler with what delicacy a jjliysician and a gentleman would naturally re- 
frain from an obtrusive scrutiny of a patient coming to his hou'^e under 
the circumstances, they will appreciate how easy it was for Booth to avoid 
recognition, and how probable that Mudd had no susj^icion who his patient 
was. Had he recognized Booth before he went to Bryantown, and heard 



27 

there that name connected with the "terrible calamity," would he have 
jogjTt'd quietly home, stopping to chat with Booz, to look after his rail- 
timber, to talk of the names of the assassins with his neif^hl)oi-s ? Unless 
the Court start out with thi' hypothesis of guilt, and snhstitute unsuiipor- 
ted suspicion for proof — which I respect them too highly to fear for a mo- 
ment they will do — they cannot charge him with a recognition of Booth 
before he returned home from l^ryantown. 

Ilai'dy says it was about sundown when Mudd left ; Farrell says about 
five o'clock. He had two miles to ride home. It mast have been sundown 
when he g«t home, and the meu had just gone. lietfy Washington says 
that three or four minutes after Ilerold ("the last of the twoj disappi'ared 
towards the swamp, Mudd came through the hall to the kitchen, and was 
then fiist seen by her after his return from Bryantown. Tlie other ser- 
vants had not come from the field wiien the mti: started — and we are 
tlierefore left to that one witness to show that th^ statement of JSiuion 
Gavacan, one of the detectives, who says '7;e tldnkr' Mudd said he went 
with them i)art of the way, is incorrect. It is inconsistent, too, with 
Mudd's statement to C\d. Wells on the subject, which is as follows : '-The 
Doctor said that as he came back to the house he saw the person that he 
afterwards supposed to be Herold passing to the left of the house, and to- 
w irds the barn or the stable ; that he did not see the other ]>erson at all after 
he left him at the house, which was about one o'clock. I think." This 
statement, ami that of Hetty Washington, last above quoted, coincide with 
and strengthen each other. 

It is true Dr. Mudd did say to all who asked him that he had shown 
Herold the way to Parson Wilmer's by the short route, but this was in the 
morning, soon after the paities reached the house, and before the idea of the 
carriage appears to have been suggested. This is shown by the statement 
of Colonel Wells, who says that the accused, in the same conversa; ion in 
ichi'h he said thid Booth and Herold liod jusl gone from the house as he came 
up, told him that : " Herold, the younger of them, asked him the direct 
route to Piney Chnpel, Dr. Wilmer's, saying that he was acfjuainted with 
Dr. WMlnier." He described the main travelled road, which leads to the 
right of his house, and was then asked if there was not a shorter or nearer 
road. I He said, "Yes, there is a road across the swamp that is about a 
mile nearer, I think ;" he said it was five miles from his house to Piney 
Chapel by the direct road and four miles by the marsh, and undertook to 
give him ("as he saidj a description by which they could go by tlie nearer 
route. He said that the directions were these : they were to pass down 
by Jiis barn, inclining to the left, and then pass straight forward in a new 
direction across the marsh, and that on passing across the marsh they 
would come to a hill ; keeping over the hill, they would come in sight of ' 
the roof of a barn, and letting down one or two fences they would reach 
the direct road." 



28 

The accused meant, of course, that this inquiry and explanation occurred 
before his return to the hou^e from Bryantown — an I so Col. Wells under- 
stoo I him, for he so in effect says. The statement of the accused to Dr. 
Geo. Mudd, the next day after Booth left, is to the same effect. He said : 
"That tliese parties stated that they came from Bryantown, and were in- 
quiring the way to the Rev. Dr. Wilmer's " — thus putting their inquiry 
for the route to Parson VVihuer's iu direct connection with their early ex- 
planation as to whence they came. 

I liave no doubt that Gavacan, the detective, recollects an inference which 
he, and perhaps also his associate dntoctive, Williams, drew from Dr. Mudd 
saying tliat Iuj had shown Herold tlie route to Parson Wilmer's, that he 
showed it as Booth and Herold were leaving. Bat the inferences of detec- 
tives, under the strong stimulus of prosjjective rewards, are inferences 
generally of guilt : and that these gentlemen were not free from the weak- 
nesses of their profession, a<id that they grossly misrepresented Dr. Mudd 
in other important statements, will presently be shown to the satisfaction 
of the Court. 

Now, if Mudd did not know, when he talked with Hardy about the as- 
sassination, and sj^oke of Booth in connection with it, that the assassin was 
at his house — as I think the evidence shows he did not — then when did he 
first suspect it? Col. Wells says his inference was, from something the ac- 
cused said, that he suspected the crippled man to be Booth before he left 
the premises. The evidence not only shows that when Mudd returned 
Booth had gone out of sight, but it also shows what fact it was that, added 
to the undue excitement of the strangers, and to the fact that the crippled 
man shaved off his moustache, thoroughly aroused his suspicion. It was the 
fact that hiii wife said lo him, after they left, t/iut as the cripjded man came down to 
go his false whi-kers became detached from his face. ("Lieut. Lovett.J When 
she told liim this, and what he said or proposed to do, was not shown by 
; the prosecution, and, by the rules of evidence, coidd not be by the defence. 
But that was a fact which could not probably have been communicated to 
Mudd by his wife until Booth had gone. 

In the evidence adduced as to Mudd's subsequent conduct and state- 
ments, I need only call the attention of the Court to two point-^, for in it 
there is nothing else against him : 1st. He did not tell on 'J'uesdai/ that the 
boot was there, far down in Ihe leg of which was found by the officers "J. 
Wilkes," written in pale ink. I answer, the boot was not found by his 
wife until several days after the assassin left, and was then found in svreep- 
ing under the bed. CHardy.^ We have every reason to suppose it was 
not found until after Tuesday, for the accused, on Friday, before a ques- 
tion was asked or a word^ communicated to him, tvld iftlie boot htm-<elf, and 
had it produced^ and said, in presence of his wite, it was found by her after 
the officers were ther<'. before. CHardy. ) 



29 

2d. Of tlie three detectives wlio went to the house of acou-^ed T aesday, 
Williams says : Accused denied throughout that two men had been there ; yet 
Jie says ou cross-examination, that accused, in the samy conversation, pointed 
out the route the men had taken towards Wilmer's. Gavacan said he at 
first denied two men had passed tliere, and then aclm.itted it. Lloyd says 
he denied it from beginning to end, on Tuesda}'. But Lieut. Loji?!!., who 
went witli and in command of these detective-j, speaking of this interview 
ou Tuesday, says: " \Ye first asked whether there laid been any stranr/ers at 
his house, and he said there were." The three detectives are manifestly 
mistaken ; either from infirmity of memory, or from some less pardonable 
cause, they have failed to recolect and truthfully render what Dr. Mudd 
did say ou that subject. 

The commentators upon the law of evidence give a caution whieh it 
may be well for the Court to observe. They admonish us how easy it is 
for a corrupt witness to falsify a conversation of a person accused, and as 
the accused cannot be heard, how difficult, if not impossible, contradiction 
is. How easy for an honest witness to misunderstand, or in repeating 
what was said to substitute his own language or inference for the language 
■which was really used, and thus change its whole meaning aud import. 
In no case can the caution be more pertinent tlian in this. The very 
phrenzy if madness ruled the hour. Reason was swallowed up in patri- 
otic passion, and a feverish and intense excitement prevailed most unfa- 
vorable to a calm, correct hearing and faithlul repetition of what was said, 
esjjecially by the suspected. Again, and again, and again the accused was 
catechized by detectives, each of whom was vieing with the other as to 
which should make the most important discoveries, and each making the 
examination with a preconceived opinion of guilt, and with an eager desire, 
if not determination, to find in what might be said the proofs of guilt. 
Again, the witnesses against the accused have testified under tlie strong 
stimulus of promised reward for information leading to arrests and fol- 
lowed by convictions. ("See order of Secretary of War. J At any time and 
in any community an advertisement of rewards to informers would be 
likely to be responded to — at a time, and on an occasion like this, it 
would be a miracle if it failed of effect. In view of these considerations, 
the Court cannot be too vigilant in its scrutiny of the evidence of these 
■detectives, or too circumspect in adjusting the influence to be given to it. 
No more effective refutation of this statement, that Mudd denied on 
Tuesday that two strangers had been at his house, can be given, than to 
ask how came Lieut. Lovett and the detectives at Dr. Mudd's ? They did 
not scent out the track for themselves. They were at Bryantown on Sat- 
urday and were at fault, and had they been let alone would probably have 
r nuained at fault, and not have gone to Dr. Mudd's. By whom and when 
was the information given which brought them there ? The next morn- 
4 



80 

ing after the startling news of the assassination reached him, the accused 
went to Dr. George Mudd, a man of spotless integrity and veracity, and of 
loyalty unswerving through all the perilous and distressing scenes of the 
border war, and fully informed him of all that had occurred — the arrival 
of the two strangers, the time aud circumstances under which they came, 
what he had done for them, the suspicions he entertained, when th^y de- 
parted, and what route they had taken ; and requested him, on his be- 
half aud in his name, to communicate this information to the military au- 
thorities on his return that day to Bryantown. Dr. George iVIudd did 
make the communication as requested, on Monday morning, to Lieut. Dana, 
and further informed him of Dr. Saml. Mudd's desire to be sent for for any 
further information which it might be in his power to give. In conse- 
quence of this, and of this alone, Lieut. Lovett and the detectives did, 
on Tuesdajj, go to the house of the accused, accompanied by Dr. George 
Mudd, who prefaced his introduction by informing the accused that, in 
accordance with his request, lie liad brought Lieut. Lovett aud the detec- 
tives to confer with him in reference to the strangers who had beeu at his 
house Saturday. Of these facts there is no doubt or dispute. They 
stand too prominently upon the record to be ignored or evaded. But for 
this information the detectives would not kave been at the house of the 
accused at all. They came at his request, and when they came it is ab- 
surd and idle to say that he denied, almost m the presence of Dr. George 
Mudd, who had been his messenger, and was then in the house, that the 
two strangers had been there. On the contrary, the evideixje shows he 
imparted all he knew, and pointed out the route which the strangers took 
when they left — but which Lieut. Lovett and the detectives did not at once 
pursue, because they chose to consider his statement uncandid, and in- 
tended to put them upon a false scent. Indeed, so accurate was the des- 
cription given by the accused to Lieut. Lovett, Tuesday, of the persons 
who had been at his house, that the Lieutenant says he was satisfied, frum 
Mudd's description, they were Booth and Herold. 

It was in great part by reason of Dr. Mudd's having delayed from Satur- 
day night until Sunday noon to send to the authorities at Bryantown in- 
formation as to the suspected persons who had been at his house, that he 
was arrested and charged as a conspirator ; aud yet I assert this recoi d 
shows he moved more promptly in communicating his information than 
they did in acting on it. His message was communicated to Lieut. Dana 
Monday morning. Tuesday, Lieut. Lovett and the detectives came, and 
that officer got such information from Dr. Mudd as convinced him the sus- 
pected persons were Booth and Herold, and yet it was not until Col. Wells 
came, on Saturday, that an energetic effort was made to find the route of 
the assassin. On that day. Dr. Mudd himself went with that officer, and 
followed the tracks on the route iudicated bejoiid the marsh iuto a piec» 



31 

of ploughed ground, where the tracks were lost. But Col, Wells had got 
the general direction, and it was in consequence of the information sent 
"by the accused to the authorities the day after Booth left his house that 
he was tracked to the Potomac. 

But the evidence does not show that Dr. Mudd delayed at all in commu- 
nicating his information, for it does not show when his wife told him of the 
false whisker of the crippled man. But, admit she told him on Saturday 
evening, as soon as the men left. It was four miles to Bryantown, and his 
wife may have feared to be left alone that night. Boyle, who haunted 
that neighborhood, was understood by Dr. Mudd to have T5e«n one of the 
assassins, (Hardy,^ and may not his or his wife's fears of the vengeance 
of that desperado have prevented him communicating his suspicions direct 
and in person to the oflBcer at Bryantown ? He told Dr. Greorge Mudd next 
day, when asking him to go to the authorities with the information, to 
caution them not to let it be publicly known that he had volunteered the 
statement, lest he might be assassinated in revenge for having done it. 

Having thus presented and discussed somewhat in detail the testimony 
in this case, I now ask the indulgence of the Court while I briefly review 
some of its leading features. 

Booth and Mudd met first in November last at church, near Bryantown, 
casually, and but for a few minutes. Their conversation was in presence 
of many others, including men of unquestioned loyalty. Next morning, 
Booth left Dr. Queen's, rode by Mudd's, talked of buying his farm, got him 
to show him over to Gardiner's, a qu irter of a mile off, where he bought a 
horse, Mudd minifesting no interest in the purchase. They rode away to- 
gether towards Mudd's house, and towards Bryantown, where Gardiner 
found Booth next morning at the village hotel. Booth was again at Dr. 
Queen's in the middle of December. But the evidence shows that he did 
not go into Mudd's neighborhood, or seek or see him. So far as we dare 
speak from the evidence — and we should dare speak from nothing else — 
that is all the intercourse between Mudd and Booth in that neighborhood 
before the assassination. 

What was there in that to attract attention or excite remark towards 
Mudd more than to Dr. Queen or Mr. Gardiner, or any other gentleman in 
Charles county, to whom Booth had been introduced, and with whom he 
had conversed ? All that is shown to have passed between them was per- 
fectly natural and harmless, and nothing is to be presumed which was not 
shown. True, they might have talked of and plotted assassination; but 
did they? Is there, in the intercourse which had thus far occurred, any 
incident from which such a deduction could be drawn, or which would jus- 
tify a suspicion that any such thing was thought of or hinted at ? Nor did 
they ever meet again anywhere before the assassination, unless the testi- 



82 

moiiy of Weichmann is to be accepted as true, wliich, upon this poini'y 
at least, is quite unworthy of credence. He swears to having met Df. 
Mudd and Booth in the City of Washington, about the middle of Janu- 
ary — jertainly after the holidays. But it is in proof by many witnesses^ 
who cannot be mistaken, have not been impeached, and who unquestiona- 
bly stated the truth, that Dr. Mudd was from home but one night from the 
23d of Dect^mber to the 23d of ^arch, and that night at a party in his owni 
neighborhood. If this be so, and there is no reason to doubt it, then Welch- 
mann's statement cannot be true. The mildest thing that can be said of 
him, as of Norton, is, that he was, mistaken in the man. That which was 
attempted to be shown by this contradicted witness (Weichmann) was, that 
Dr. Mudd and Booth, who were almost strangers to each other, met Sur- 
ratt, to whom Booth was unknown, at the National Hotel, and within half 
an hour after the meeting plotted the assassination of the President, h's 
Cabinet, the Vice President, and General Grant — all this in Washington, 
and in the presence of a man whom one of the supposed conspirators knew 
to be an emj)loyee of the War Department, and had reason to believe was 
a Government detective ! It is monstrous to believe any sucli thing oc- 
curred. It outrages all that we have learned of the philosophy of human 
nature, all that we know of the motives and principles of human actions. 
And yet, if Mudd was not then and there inducted into the plot, he never 
was. He never saw Booth again until after the assassination, and never 
saw any of the other conspirators at all. Twice, then, and twice only — 
unless the Court shall accept tne testimony of Weichman against the clear 
proofs of an alibi, and then only three times — he and Booth had met. None 
of these meetings occurred later than the 15th of January. They are shown 
to have been accidental and brief. The j^arties had but little conversation, 
and portions of that little have been repeated to the Court. So far as it ha& 
been disclosed, it was as innocent as the prattle of children, and not a word 
was breathed that can be tortured into criminality — not a word or an act 
that betokens malign purposes. Against how many scores of loyal per- 
sons, even in this community, may stronger evidence be adduced than 
against Mudd, if the mere fact of meeting and conversing with Booth is to 
be accepted as evidence of guilt ? Booth was a guest at the National Ho- 
tel — intelligent, agreeable, of attractive manner, with no known blemish 
on his character as a man or a citizen. He had the entree of the drawing- 
rooms, and mingled fieely with the throngs that assembled there. His 
society, so far from being shunned, was courted ; and the fairest ladies of 
the land, the daughters of distinguished statesmen and patriots, deemed it 
no disparagement to them to accept his escort and attentions. It is not 
extravagant to say, that hundreds of true, Union-loving, loyal people in 
this and in other cities, were oh teims of cordial and intimate association 
with him. And why siiould thev not have been ? He was under no sus- 



33 

picion. They did rot shun liiin. Why should Miidd ? And why shall 
what was innocent in them be held proof of guilt in him ? Let it be re- 
membered iu this connection, that Dr. Mudd's house wns searched and his 
papers seized ; that Surratt's house was seized and searched ; that all the 
effects of Kootli, Atzerodt, Arnold, Herold, Spangler, and Mrs. Surratt, that 
could be found, were seized and examined ; and that among them all not 
a letter, a note, a memorandum, not the scrape of a pen by any person or 
in any form, has been found implicating Dr. Mudd. Let it further be re- 
membered, that all these persons have been subjected to repeated exai'.ii- 
nations, under appalling circumstances, by various dfiicials of the Govern- 
ment, eager to catch the faintest intimation of Mudd's complicity, and that 
not one of them has mentioned or hinted at liis name. Let it also be re- 
membered, that anon_ymous letters have been picked up iu railroad- cars, 
found in pigeon-holes at hotels, rescued from the waves, and that the con- 
tinent has been traversed and the ocean vexed in search of proofs of the 
conspiracy, its instigators, leaders, and abettors, and that in all this writ- 
ten and oral testimony there is not a word making tiie remotest alluf-ion to 
♦Dr. Mudd. Tlie probabilities are as a thousand to one that he never knew, 
or heard, or imagined, of a purpose, much less plotted in a conspiracy, 
either to capture or to assassinate the President. Tiiere is not only a fail- 
ure to show his connection affirmatively, but, if the rules of law be revers- 
ed, and guilt pre umed until innocence be shown, then, I say, he has car- 
ried his proofs in negation of complicity to a point as near demonstration 
as it is possible for circumstantial evidence to reach. 1 once more concede, 
that ("if the Court accept Weichmann's statement^ it is possible he may 
have talked treason and plotted assassination wit)i Booth and Surratt, but 
it is indefinitely removed from the probable ; and neither liberty nor life ia 
to be forfeited upon either probabilities or possibilities. 1 cannot bring 
myself to fear that this Commission will sanction what, in my judgment, 
would be so shocking and indefensible a conclusion. 

If he and Hootli had, at the alleged meeting iu .Tanuary, confederated for 
the perpetration of one of the most stupendous and startling crimes in 
the annals of human depravity, who can doubt that frec]uent meetings and 
consultations would thereafter have occurred, and that Uiey would have 
increased in frequency the as time for the consummvtion of the atrocious 
plot approached ? Yet, though within six hours' ride of each other, they 
had no meetings, no consultations, no intercourse, no communication, no 
concert, but were in total ignorance of each other's movements and pur- 
poses. Mudd was here tlie 2IJd of March, but he was not here for the pur- 
pose of seeing Booth, nor did he see hiwi. He made no inquiry for him ; 
did not call at his hotel ; saw none of his associates ; did no speak of him ; 
did not, so far as appears, even think of him. On the 11th of April, only 
three days before the frightful tragedy was enacted, Mudd was at Giesboro, 



u 

in sight of Washington. Bootli was then at the National Hotel ; and if 
Mudd was leagued with him, that was the time of all others, from the con- 
ception to the consummation of the deed, when he would have seen and 
conferred with him. if Mudd was a conspirator, he knew of Booth's pres- 
ence here then ; yet he did not come to the city — did not inquire for 
Booth, see him, hold communication with him, learn whether he waa 
in Washington or Boston, Nassau or London. Three days only be- 
fore the frightful tragedy — three days before the world was astounded by 
its enactment ! Imagine, if you can — if he Was a conspirator — what a tu- 
mult of thouglit and emotion must have agitated him tlien — what doubts 
and misgivings — what faltering and rallying of resolution — what invoca- 
tions to "stop up the access and passage to remorse" — and then ask your 
own liearts and judgments if it is natural, or possible, that, at such a mo- 
ment and under such circumstances, he could quietly have transacted the 
business that brought him to Qiesboro, then turn his back upon Washing- 
ton, indifferent to the failure or success of the events with which his own 
life, the happiness of his family, and all that was dear to him on earth, 
were bound up ? If a conspirator, he knew what had been, and what was 
to be, done. He knew that the hour for the bloody business was at hand, 
and that everything depended upon the secrecy and success of its execu- 
tion. Yet he was indifferent. He sought no interview with his supposed 
confederates — gave them no counsel or assistance — took no precautions for 
security — gave no signs of agitation or concern — but, in sight of the place 
and the agents selected for the enactment of the horrible deeds, turned his 
back upon them all, with an inditference that bordered upon idiocy, quietly 
trafficked at Giesboro, and returned to the seclusioa of his family and farm. 
You know, gentlemen, that this is impossible. You know that it could 
not have happened without outraging every law of human nature and hu- 
man action. You know that at such an hour his soul would have been 
shaken with the maddest storm and tempest of passion, and tliat no mere 
business affair on earth could have seduced his thoughts for a moment 
from the savage slaughter he had in hand. It would have engrossed all 
his thoughts, and shaped all his actions. No one can, in the strong light 
of the evidence, believe he was a conspirator, 

I then confidently conclude that Dr. Mudd cannot be convicted as a 
principal in the felony. He did not participate in its commission, and was 
more than thirty miles distant from the scene when it was committed. He 
cannot be convicted as an accessory before the fact, for the evidence fails 
to show that he had any knowledge or suspicion of an intention to commit 
it. If, then, he is to be held responsible at all, it is an accessory after the 
fact. Does the evidence implicate him in that character ? What is an 
accessory after the fact ? 

An accessory after the fact is when a person, knowing a felony to have 



85 

been committed, receives, relieves, comforts, or assists him whom he knows 
to be the felon. He must know that the felon is guilty to make him an 
accessory. (I Chit. Crim Law, 264.) 

Any assistance given to him to hinder his being apprehended, tried, or 
punished, is sufficient to convict the olfender — as lending him a horse to 
escape his pursuers; but the assistance or support must be given in order 
to favor an illegal escape. (I Chit. Crim. Law, 2t)5.J If a man receives, 
harbors, or otherwise assists to elude justice, one whom he knows to be gui'ty 
of felony, he becomes thereby an accessory after the fact in the felony. (1 
Bishop's Crim. Law, 487.^ Obviously, a man to be an accessory after the 
fact must be aware of the guilt of his principal ; and, tlit-refore, one cauno*' 
become an accessory by helping to escape a prisoner convicted of felony, 
unless he has notice of the conviction, or at least of the ftlony committed. (1 
Bishop's Crim. Law, 488. J The charge against an accessory consists of two 
parts : First, of the felonious situation of the principal ; and, secondly, of the 
guilty knowledge and conduct of the accessory. It will thus be seen that 
knowledge of the crime committed, and of the guilt of the principal who is aided, 
and aid aud assistance after acquiring that knowledge, are all necessary to 
charge one as accessory after the fact. 

Now, let us apply the facts to the law, and see whether Dr. Mudd falls 
within the rule. On the morning after the assassinatiou, about daybreak, 
Booth arrived at his house. He did not find the doctor on watch for 
him, as a guilty accomplice, expecting his arrival, would have been, but- 
he and all his household were in profound sleep. Booth came witli a 
broken leg, and his companion, Herold, reported tliat it had happened by 
the fdU of his liorse, and that they had come from Bryantowu, and were 
going to Parson Wilmer's. The doctor rose from his bed, assisted Booth into 
the house, laid him upon a sofa, took him up stairs to a bed, set the frac- 
tured bone, sent him a razor to shave himself, permitted him to remain there 
to sleep and rest, and hadapair of ruale crutches improvised for his use. For 
all this he received the ordinary compensation for services rendered to stran 
gers. He then went to his field to work. After dinner, while th^; day was 
still dark, and BootU still resting disguised in his chamber, Mudd left the 
house with Herold. Even though he had known of the assassination, and that 
his patient was the assassin, none of these acts of assistance would have made 
him an accessory after the fact, "//"a person supply a felon with food, or 
other necessaries for his sustenance, or professionally attend him sick or wounded, 
though he know him to be a felon, these acts will not be sufficient to make a party 
an acce<isory after the fact.'" ("Wharton's American Criminal Law, p. 73. _) 
But he did not know, and had no reason to suspect, that his patient was a 
fugitive murderer. The most zealous advocate would not venture to assert 
that the evidence warrants suuh conclusion; much less will it be assumed 
bjr one actiujj under tha solemn responsibilities of judge. Down, then, to 



36 ^ '■ 



the t^rne Mudd left home with Herold, aftnr dinner, the evidence afford, 
pretext for asserting he was an accessory afte^ the fact ^ "° 

Bnt If j.e was 'not then an accessory, he never was Tt ;= .1 

panic,, th ,0 ,r. lo W L ; T f'- '"" "'■"" "•" "•"» ■'- ~- 

Src;::r-:-::::n:-=EiE 

Saturdav n^t, hTde'l^^d, It Sand ""'"""^ ""''^'^^"^^'^ ^^^^^'^^ 

authorises .7^''^^'^^"'^*^1 Sunday noon to communicate them to the 

doZ rl ' ^-Jfenn.afeion to escape. M not charge the party so 

dou,g-.uck a.^.unt^ng to a mere omission." CWhar. Am. Crimf Law, 73 ; 

be^I'rir'hett'::;^"""" '' ' -'''-'-' - -— ry 
erned in U 7 assassination ? If this tribunal is to be gov- 

pose Of the court and its .^i:..::: ;r W^ I^ ^ ^^^^^^^ 

THOAIAS EWIKG, Jk., 

Oj Counsel for Samuel A. Mudd. 



